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94 2d Boston 88 } COMMITTEE PRINT

THE NATIONAL EMERGE JH8I|^ACT
(PUBLI^ "LAW 94r4}2)« f

Source Book: Legislatr^fKl5$0Fj / /Texts, and
Other Documents

COMMITTEE ON GOVERNMENT OPERATIONS

AND THE

SPECIAL COMMITTEE ON NATIONAL

EMERGENCIES AND DELEGATED

EMERGENCY POWERS

UNITED STATES SENATE

NOVEMBER 1976

M ld SoT 8 } [COMMITTEE PRINT]

THE NATIONAL EMERGENCIES ACT
(PUBLIC LAW 94-412)

Source Book: Legislative History, Texts, and
Other Documents

COMMITTEE ON GOVERNMENT OPERATIONS

AND THE

SPECIAL COMMITTEE ON NATIONAL

EMERGENCIES AND DELEGATED

EMERGENCY POWERS

UNITED STATES SENATE

NOVEMBER 1976

U.S. GOVERNMENT PRINTING OFFICE
66-474 O WASHINGTON : 1976

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price J3.30

COMMITTEE ON GOVERNMENT OPERATIONS
ABRAHAM RIBICOFF, Connecticut, Chairman
JOHN L. McCLELLAN, Arkansas CHARLES H. PERCY, Illinois

HENRY M. JACKSON, Washington JACOB K. JAVITS, New York

EDMUND S. MUSKIE, Maine WILLIAM V. ROTH, Jr., Delaware

LEE METCALF, Montana BILL BROCK, Tennessee

JAMES B. ALLEN, Alabama LOWELL P. WEICKER, Jr., Connecticut

LAWTON CHILES, Florida
SAM NUNN, Georgia
JOHN GLENN, Ohio

Richard A. Wegman, Chief Counsel and Staff Director

Paul Hopf, Counsel

Paul L. Leventhal, Counsel

Eli E. Nobleman, Counsel

David R. Schaefer, Counsel

Matthew Schneider, Counsel

Fred Asselin, Investigator

Ellen S. Miller, Professional Staff Member

John B. Childers, Chief Counsel to the Minority

Brian Conboy, 'Special Counsel to the Minority

Marilyn A. Harris, Chief Clerk

Elizabeth A. PreAst, Assistant Chief Clerk

Harold C. Anderson, Staff Editor

SPECIAL COMMITTEE ON NATIONAL EMERGENCIES AND
DELEGATED EMERGENCY POWERS

FRANK CHURCH, Idaho Co-Chairmen CHARLES McC. MATHIAS, Jr., Maryland
PHILIP A. HART, Michigan CLIFFORD P. CASE, New Jersey

CLAIBORNE PELL, Rhode Island JAMES B. PEARSON, Kansas

ADLAI E. STEVENSON III, Illinois CLIFFORD P. HANSEN, Wyoming

Jerry M. Brady, Staff Director
William K. Sawyer, Professional Staff
Gayle D. Fitzpatrick, Chief Clerk

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LETTER OF TRANSMITTAL

U.S. Senate,
Committee ox Government Operations.

Washington. B.C.. October 20. 1976.
Hon. Nelson A. Rockefeller.
P resident of the Senate.
The Capitol. Washington, D.C.

Dear Mr. Vice President: The Committee on Government Opera-
tions transmits herewith for publication as a committee print a com-
pilation of materials relative to the legislative history of the National
Emergencies Act which was signed by the President on September 14.
1976 (Public Law 94-412).

This material, referred to as a Source Book, summarizes the activi-
ties of the Special Committee on National Emergencies and Delegated
Emergency Powers, and the work of the Senate and the House of
Representatives and the Senate Committee on Government Operations
and the House Committee on the Judiciary, which processed the legis-
lation in their respective Houses.

The Special Committee terminated its existence on April 30, 1976.
and its co-chairmen requested the Committee on Government Opera-
tions to assume responsibility for the completion of the Source Book.

It is believed that this compilation will prove valuable and useful to
scholars and other interested and affected persons.

Abe Ribicoff, Chairman.
(in)

PREFACE

This compilation of materials relating to the legislative history of
Public Law 94— ±12. the National Emergencies Act. summarizes the
three-year investigative and legislative activity culminating in this
statute designed to guide the exercise of national emergency powers.

These efforts were undertaken by a special Senate study commit-
tee — The Special Committee on the Termination of the National
Emergency which was later renamed The Special Committee on Xa-
tional Emergencies and Delegated Emergency Powers — and two
legislative committees, the House Committee on the Judiciary and the
Senate Committee on Government Operations.

This sourcebook was prepared by Dr. Harold C. Relyea. Congres-
sional Research Service. Library of Congress, and William K. Sawyer
and Gayle D. Fitzpatrick of the Special Committee.

(V)

Digitized by the Internet Archive
in 2013

http://archive.org/details/mergencOOunit

INTRODUCTION

Passage of the National Emergencies Act culminates three years of
work by the Special Committee on National Emergencies and Dele-
gated Emergency Powers. The legislation terminates powers and au-
thorities possessed by the President as a result of existing states of
national emergency and establishes procedural guidelines for the han-
dling of future emergencies with provision for regular Congressional
review. The bill should end the disarray that has characterized emer-
gency laws and procedures in the United States.

To understand the full significance of the National Emergencies
Act, one must place it within the context of Congressional efforts to
reclaim prerogatives abandoned to the Executive. The Vietnam War
and the abuses known collectively as "Watergate*' have led Congress to
assume a more prominent role, most notably in foreign policy and the
budgetary process. It has enacted a War Powers Act, defeated major
weapons proposals, investigated the intelligence community, and
moved to impeach a President. Congress has insisted upon increased
Executive accountability and greater freedom of information. The Na-
tional Emergencies Act is consistent with these efforts to make the Ex-
ecutive accountable for his actions and to restore Congress as an equal
partner in the government.

This sourcebook is a chronicle of the efforts behind this one Act. We
trust that scholars will find this document helpful and hope that the
nation enjoys such domestic tranquility that its authorities are never
invoked.

Frank Church.

Charles McC. Mathias, Jr.,

Coch airmen.

I VII i

CONTENTS

Page
Letter of transmittal in

Preface v

Introduction vn

I. The Evolution of the National Emergencies Act (Public Law 94— 112) 1

II. The Special Committee on the Termination of the National Emergency/
National Emergencies and Delegated Emergency Powers 13

A. Initial authorizing resolution of the Special Committee (Congres-

sional Record, v. 118, May 23, 1972: pp. S18367-S 18369) 13

B. A Recommended National Emergencies Act (S. Rept. 93-1170) 19

C. Pinal report of the Special Committee on National Emergencies

and Delegated Emergency Act (S. Rept. 94-922) 29

III. The National Emergencies Act (Public Law 94-412) 71

A. Introduction of S. 3957, 93d Congress (Congressional Record, v.

120, August 22, 1974: pp. S15784-S15794) 71

B. Text of S. 3957, 93d Congress 92

C. Report on S. 3957, 93d Congress, by the Committee on Government

Operations, United States Senate (S. Rept. 93-1193) 95

D. Debate and adoption of S. 3957, 93d Congress, by the United States

Senate (Congressional Record, v. 120, October 7, 1974: pp.
S18356-S18367) 145

E. Introduction of H.R. 16668, 93d Congress (Congressional Record, v.

120, September 16, 1974: p. H9266, H9296) 175

F. Text of H.R. 16668, 93d Congress 177

G. Introduction of H.R. 3884, 94th Congress (Congressional Record, v.

121, February 27, 1975: p. H1225) 179

H. Text of H.R. 3884, 94th Congress 180

I. Report on H.R. 3884, 94th Congress, by the Committee on the Judi-
ciary, House of Representatives (H. Rept. 94-238) 183

J. Debate and adoption of H.R. 3884, 94th Congress, by the House of
Representatives (Congressional Record, v. 121, September 4,
1975: pp. H8325-H8341) 239

K. Introduction of S. 977, 94th Congress (Congressional Record,

v. 121, March 6, 1975: p. S3202) 285

L. Text of S. 977, 94th Congress 287

M. Report on H.R. 3884. bv the Committee on Government Operations,

U.S. Senate (S. Rept. 94-1168) 290

N. Debate and adoption of H.R. 3884 by the U.S. Senate (Congres-
sional Record, v. 122, August 27. 1976, pp. S14840-S14844) 332

O. Adoption of Senate amendments to H.R. 3884, 94th Congress, by the
House of Representatives (Congressional Record, v. 122, August
31, 1976, p. H9253) 341

P. Text of President's statement upon signing H.R. 3884 "Weekly Com-
pilation of Presidential Documents", v. 12, September 20, 1976.
p. 1340 343

Q. Text of Public Law 94-412, the National Emergencies Act (90 Stat.

1255) 344

Appendixes

A. Proclamations of national emergency terminated by Public Law
94-412 351

B. The Federal Government and National Emergency Powers : A

General Bibliography 355

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THE EVOLUTION OF THE NATIONAL EMERGENCIES ACT
(PUBLIC LAW 94-412)*

Momentary exigencies in the life of a democracy may require the
temporary exercise of extraordinary power to ensure the continued
existence of that state and the preservation of the freedoms and rights
guaranteed to its citizens during normal times. The aim of the Na-
tional Emergencies Act is to insure that the exercise of national emer-
gency authority is responsible, appropriate, and timely.

The origins of national emergency power in the evolution of Amer-
ica's national government can be traced to legislation enacted in 1775
by the Continental Congress. 1 Shay's Rebellion was probably the first
emergency test for the new Federal administration. Lentil the crisis
of World War I, Presidents utilized emergency authority, whether
specified in the statutes or implied by the Constitution, at their own
discretion. Special Presidential proclamations often announced the
exercise of this exigency authority. Since the period of the First
World War. the Chief Executive has, by means of a proclamation,
declared a condition of national emergency, sometimes confining the
matter of crisis to a specific policy sphere and sometimes placing no
limitation on the pronouncement whatsoever.

National emergency proclamations

The first national emergency proclamation, explicitly issued as such,
was made (39 Stat. 1814) by President Woodrow Wilson on Febru-
ary 5, 1917. Issued by virtue of the authority conferred upon the
President bv legislation establishing the United States Shipping
Board (39 Stat. 728), the proclamation was concerned with matters
of water transportation policy. It was terminated, along with a variety
of other wartime measures, bv statute (41 Stat. 1359) on March 3,
1921.

The next national emergencv proclamation was issued (48 Stat.
1689) by President Franklin fo. Roosevelt on March 6, 1933, some
48 hours after assuming office. Issued upon the somewhat questionable
authority of the Trading With the Enemy Act of 1917 (40 Stat. 411),
the proclamation declared a "bank holiday" and halted all financial
transactions by closing the banks. The Chief Executive's action and
proclamation were sanctioned by Congress with the passage of the
Emergency Banking Act (48 Stat. 1) on March 9. The day this legis-
lation was signed into law the President issued a second banking proc-
lamation (48 Stat. 1691), based upon the authority of the new law,
continuing the bank holiday until the various banking institutions

*Prepared for the Special Committee by Harold C. Relyea, Analyst in American Na-
tional Government. Government Division. Congressional Research Service, Library of
Congress, under the direction of the staff of the Special Committee.

1 For a concise history of the evolution and exercise of emergency powers in the
United States spp U.S. Congress. Senate. Special Committee on National Emergencies
and Delegated Emergency Powers. A Brief History of Emergency Powers in the United
States by Harold C. Relyea. Committee print 93rd Congress, 2d session. Washington,
U.S. Govt. Print. Off., 1974.

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established that they were capable of conducting business in accord-
ance with new banking policy.

Actually, the powers possessed by the President as a result of this
emergency proclamation continued in force until their termination
was provided for in the National Emergencies Act, some four decades
later.

On February 28, 1935, President Roosevelt promulgated a proclama-
tion (49 Stat. 3438) which, while it did not directly announce a con-
dition of national emergency, recognized the continuation of an exist-
ing national emergency in the agricultural industry. Accordingly, the
proclamation established the effective dates of the Cotton Control Act
(48 Stat, 598) approved April 21, 1934. It was repealed on Febru-
ary 10, 1936 (49 Stat. 1106).

On September 8, 1939, President Roosevelt issued a proclamation
(54 Stat. 2643) of "limited" national emergency, though the law gave
no recognition to the qualifying term. Two years later, on May 27,
1941, the President issued a proclamation (55 Stat. 1647) of "un-
limited" national emergency. This action did not add any new powers
to the list of emergency authorities made available to the Chief Execu-
tive by the 1939 proclamation. Instead, the action was a political
gesture prompted by the conflict in Europe and growing tensions in
Asia.

These two war-related proclamations of a general condition of na-
tional emergency remained in effect until 1947 when certain specific
emergency and war statute provisions were terminated by a law (61
Stat. 449) approved on July 25 that year. Earlier, on September 29,
1945, President Truman had, by proclamation (59 Stat. 886), with-
drawn certain emergency provisions of the Internal Revenue Code as
the end of hostilities in both theaters of war made their use no longer
warranted.

On October 19, 1951, Congress terminated (65 Stat. 451) the declara-
tion of war against Germany. On March 20, 1952, the Senate ratified
the treaty of peace with Japan. Because these actions legally estab-
lished the end of World War II, congressional action was required to
continue certain emergency provisions. By joint resolution, Congress
enacted the Emergency Powers Interim Continuation Act (66 Stat.
54) to maintain such emergency authority and continued to extend the
life of the measure (66 Stat. 96; 66 Stat. 137; 66 Stat. 296) until the
Emergency Powers Continuation Act was prepared and ratified (66
Stat. 330) . This latter statute was continued (67 Stat. 18 ; 67 Stat. 131)
until August, 1953, when its emergency authorities were finally allowed
to elapse. On April 28, 1952, President Truman terminated by procla-
mation (66 Stat. c31) the 1939 and 1941 declared emergency conditions,
leaving operative only those statutorily continued by the above noted
laws.

Truman's 1952 termination announcement specifically exempted a
proclamation of national emergency (64 Stat. A454) issued by Tru-
man on December 16, 1950. The 1950 national emergency, proclaimed
to provide the Chief Executive with additional powers to respond to
hostilities in Korea, remained operative until 2 years after the enact-
ment of the National Emergencies Act.

That legislation also provided for the effective termination of two
emergency proclamations issued by President Richard M. Nixon. One

proclamation was issued on March 23, 1970, in response to a postal
strike. A second proclamation, issued on August 23, 1971, announced
a national emergency with regard to balance of payments in overseas
trade.

Congressional concerns

As the years passed, concern was expressed in Congress over the
fact that President Truman's 1950 proclamation of national emer-
gency continued to exist long after the conditions prompting its issu-
ance had disappeared. (Other proclamations of emergency were not
apparent until studies disclosed their existence in 1973.) Senator
Charles McC. Mathias (R-Md.), in particular, was concerned that the
President was retaining extraordinary powers intended only for time
of genuine emergency and that the Chief Executive was thwarting
the legislative intent of the Congress by his failure to terminate the
declared national emergency. At the same time, concern over the Presi-
dent's exercise of war powers was growing as the United States be-
came deeply embroiled in hostilities in Vietnam. In the course of
examining American commitments in Southeast Asia, efforts were
initiated to bring a special focus to bear on the exercise of national
emergency powers. As Senator Mathias, a leader in this policy area,
later testified :

My own interest in the question of emergency powers developed out of our
experience in the Vietnam War and the incursion into Cambodia. It became clear
that the President had powers to commit us to warfare without adequate respect
for the constitutional requirement that Congress alone can declare a state of war.
During the years 1969-1972, particularly, I introduced or cosponsored numerous
bills to repeal Congressional resolutions in support of the President's actions, for
example, in Formosa and the Gulf of Tonkin. In 1971, I submitted Senate Con-
current Resolution 27 to establish a special joint committee to study the effect
of terminating the first state of emergency we found in existence, that declared
by President Truman in 1950 during the Korean War. Then on May 23, 1972, I
introduced, with Senator [Frank] Church's co-sponsorship, Senate Resolution 304,
which called for the creation of the Senate Special Committee on the Termination
of the National Emergency. The committee was to be empowered "to conduct a
study and investigation with respect to the termination of the 1950 emergency,"
to consider problems which might arise as the result of the termination _and to
consider what administrative or legislative actions might be necessary. 2

The Special Committee was initially established after S. Res. 304
was considered and reported bv the .Foreign Relations Committee (S.
Rept. 92-858, June 2, 1972) and the Senate Rules and Administration
Committee (S. Rept. 92-914, June 21, 1972). Reported from the latter
panel with technical amendments, the resolution was adopted by the
Senate on June 23.

With the convening of the 93rd Congress, the Special Committee on
the Termination of the National Emergency was again approved on
January 6, 1973, through S. Res. 9 after the Foreign Relations Com-
mittee was discharged from any further consideration of the instru-
ment. The Special Committee was subsequently continued by S. Res.
242, reported (S. Rept. 93-715) from the Committee on Rules and
Administration on February 28, 1974, and voted by the chamber on
March 1. With this measure the name of the panel was changed to the
Special Committee on National Emergencies and Delegated Emer-

2 U.S. Congress. House. Committee on the Judiciary. Subcommittee on Administrative
Law and Governmental Relations. National Emergencies Act. Hearings, 94th Congress,
1st session. March 6, 13, 19, and April 9, 1975. Washington, U.S. Govt. Print. Off.,
1975, p. 20.

gency Powers to reflect its focus upon matters apart from the 1950
emergency proclamation.

At the opening of the 94th Congress, the Special Committee's man-
date was again extended with S. Res. 10 which was discharged from
the Foreign Relations Committee on February 5 and referred to the
Rules and Administration Committee where it was reported (S. Rept.
94-323) on July 23 and adopted three days later on July 26, 1975.

Unexpected legislative delay necessitated extension of the Special
Committee's life for an additional two months in 1976. S. Res. 370,
which authorized the extension, was introduced in the Senate on Jan-
uary 30, reported by the Rules and Administration Committee (S.
Rept. 94-672) on February 26, and passed by the Senate on March 1,
1976.

Committee operations

The Special Committee was organized and prepared to begin its
studies of emergency powers matters by the first week of January,
1973. 3 During its entire life, the panei was co-chaired by Senator
Frank Church (D. -Idaho) and Senator Charles McC. Mathias, Jr.
(R.-Md.). Other members of the unit during its existence were Sen-
ators Philip A. Hart (D.-Mich.), Clifford P. Case (R.-N.J.), Clai-
borne Pell (D.-R.L), James B. Pearson (R.-Kan.), Adlai E. Steven-
son III (D.-Ill.), and Clifford P. Hansen (R.-Wyo.). Generally,
during the 93rd Congress, the principal research and investigative
staff members of the Special Committee were William G. Miller, Staff
Director, and Thomas A. Dine. For the 94th Congress, the panel was
assisted by Jerry M. Brady, Staff Director, and William K. Sawyer.

An expression of the spirit and manner of procedure followed by
the Special Committee may be found in the following (April 11, 1973)
statement by Co-chairman Mathias :

The committee's bipartisan nature reflects the intention of the Senate to
examine emergency powers legislation solely from a constitutional perspective.
We want to determine how these powers affect the proper relationship between
the Executive and Legislative branches. For this reason, as specified by the
authorizing resolution, the Special Committee is working closely with the Admin-
istration. Attorney General [Richard] Kleindienst, in response to a specific
request of the Special Committee, has assigned members of the Justice Depart-
ment to work with the staff of the Special Committee, and, we are happy to report
that cooperation from the Justice Department has been full and thorough. It is
expected that other departments and agencies will provide similar assistance.

The first and most difficult task of the Special Committee is to be certain that
all of the statutes and relevant Executive Orders have been collected for study
and deliberation. At the present time, nowhere in the government — either in
Congress or in the Executive Branch — is there a complete catalogue of statutes
and Executive Orders pertaining to emergency powers. The staff of the Commit-
tee has undertaken — in cooperation with the Library of Congress, the General
Accounting Office, and the Justice Department — a computer search of all relevant
statutes in the U.S. Code. These findings are now being checked by the staff and
we expect that a reasonably complete catalogue of all emergency power statutes
will be issued as a committee print.

When the statutes and Executive Orders are assembled, the Special Committee
intends to work with the appropriate Executive departments and agencies to
review every statute to determine which statutes would be required in the event
of a future emergency. This process, in essence, would be an evaluation of their

3 U.S. Congress. Senate. Special Committee on the Termination of the National Emer-
gens. Review and Manner of Investigating Mandate Pursuant to S. Res. 9. 93d Congress :
A Working Paper. Committee print. 93d Congress, 1st session. Washington, U.S. Govt.
Print. Off., 1973, p. 17.

present and future utility. Concurrently, the Special Committee intends to consult
with each standing committee of the Senate with regard to the particular emer-
gency powers that apply to its separate area of responsibility, and, to ask for its
judgment on which should be amended. 4

Early in its work, the panel became aware of the existence of proc-
lamations of national emergency other than the 1950 declaration and
began grappling with a growing canon of emergency law revealed
through diligent research. 5 Ultimately, three compilations were pro-
duced by the unit. The first of these, released in the autumn of 1973,
identified 470 provisions of Federal law delegating extraordinary au-
thority to the Executive in time of national emergency. The second
study, appearing in the spring of 1974, identified a panoply of Execu-
tive Orders and Presidential proclamations implementing or otherwise
bearing upon the exercise of emergency power by the Executive. 7 And
the final research product, offered during the summer of 1974, briefly
surveyed the history of the utilization and evolution of Federal emer-
gencv power from the earliest days of the Republic to the closing
months of 1974. 8

On April 11, 1973, the Special Committee began public hearings on
the matter of national emergencies and the status of emergency powers,
the first such deliberations by a congressional panel since 1952. 9 The
proceedings of April 11 and 12 and Xovember 28 were devoted to con-
stitutional questions concerning emergency powers with some of the
leading constitutional scholars of the country offering their views to
the panel. Professor Robert S. Rankin of Duke University (Emeritus) ,
Professor Cornelius P. Cotter of the University of Wisconsin, and
Professor J. Malcom Smith of the California State University testified
before the Special Committee on general historical and legal matters
pertaining to emergency powers. Dean Adrian S. Fisher of the George-
town University Law School addressed the circumstances surrounding
the declaration of the 1950 national emergency, citing his experience
as an advisor to President Truman at the time that declaration was
made. Dr. Gerhard Casper, Professor of Law and Political Science
at the University of Chicago, spoke before the panel regarding con-
stitutional matters surrounding Executive use of emergency powers
and comparing the experiences of other democratic states, particularly
those of the German Weimar Republic. On Julv 24, former Attornevs
General Tom C. Clark (1945-1949), Xicholas deB. Katzenbach (1965-
1967), and Ramsey Clark (1967-1969) offered their historical and
professional views on the emergency powers situation. After his

* U.S. Congress. Senate. Special Committee on the Termination of the National Emer-
gency. National Emergency. Hearings, 93d Congress. 1st session. April 11, 1973. Wash-
ington, U.S. Govt. Print. Off.. 1973, pp. 4-5.

5 See U.S. Congress. Senate. Special Committee on the Termination of the National
Emergency. Review and Manner of Investigating Mandate Pursuant to S. Res. 9, 93d
Congress : A Working Paper. Committee print, 93d Congress. 1st session. Washington,
U.S. Govt. Print. Off.. 1973, pp. 2-6.

G See U.S. Congress. Senate. Special Committee on the Termination of the National
Emergency. Emergency Powers Statutes : Provisions of Federal Law Now in Effect Dele-
gating to the Executive Extraordinarv Authoritv in Time of National Emergency. Com-
mittee print. 93d Congress. 1st session. Washington, U.S. Govt. Print. Off., 1973. [Also
issued as S. Rept. 93-549 and in an abridged form.]

7 See U.S. Congress. Senate. Special Committee on National Emergencies and Delegated
Emergencv Powers. Executive Orders in Times of War and National Emergency. Com-
mittee Print. 93d Congress, 2d session. Washington, U.S. Govt. Prin{. Off., p. 1974.

8 See Note 1.

9 See U.S. Congress. House. Committee on the Judiciary. Subcommittee No. 4. Emergency
Powers Continuation Act. Hearings. S2d Congress. 2d session. February 27. 28. 29,
March 6. 7, 12. 13. 21. 24, 26. 28, April 2, 7, 25, 28, 1952. Washington, U.S. Govt. Print.
Off., 1952.

resignation as head of the Justice Department, Elliot Richardson pre-
sented his views to the Special Committee as did former Solicitor Gen-
eral Erwin N. Griswold ( 1967-1972 ). 10 After these hearings were
concluded, the Special Committee, on August 22, 1974, issued an in-
terim report (S. 93-1170) of findings and recommendation, saying, in
part:

In our view, Congress should provide statutory guidelines to assure the full
operation of constitutional processes in time of war or emergency. This is the
best prescription to avoid any future exercise of arbitrary authoritarian power.
For as the Youngstown Case [Youngstown Sheet & Tube Company v. Sawyer,
343 U.S. 579 (1952)] decided where there is a statute, the Executive is obliged
to use the statutory remedy ; where there are no lawful statutory guidelines is
to invite so-called inherent powers to come into play. There is without question
a need, in the view of the Special Committee, to provide the Executive branch
with an effective, workable method for dealing with future emergencies in accord
with constitutional processes. The Special Committee has sought to do this in
fulfillment of its mandate.

By unanimous approval of its membership on July 11, the Special
Committee recommended legislation "[t]o terminate certain authori-
ties with respect to national emergencies still in effect, and to provide
for orderly implementation and termination of future national emer-
gencies." As proposed, the measure (1) would terminate, after 271
days from the date of enactment, all powers and authorities conferred
by law upon the President or his Executive branch subordinates and
all powers and authorities conferred by any Executive Order pursuant
to law as a result of the existence of any national emergency currently
in effect, (2) established a procedure whereby future proclamations of
a national emergency by the Chief Executive would have to be pub-
lished in the Federal Register and in accordance with the requirements
of the act, (3) required that the President indicate what provisions of
emergency law he sought to have come into effect upon proclaiming a
national emergency with notice of same being made both to Congress
and in the Federal Register, (4) provided that a proclamation of na-
tional emergency would terminate after 180 days from date of declara-
tion unless terminated earlier or extended by an act of Congress, (5)
required that pertinent executive branch orders, rules, and regula-
tions having a bearing upon the exercise of national emergency author-
ity be maintained in a file, indexed, and otherwise made known to
Congress, and (6) repealed certain provisions of emergency law
deemed no longer worthy of continuation. In arriving at this
recommended legislation, the Special Committee had consulted the
Executive regarding the utility of existing emergency statutes, recom-
mendations for legislative action, and views as to the repeal of certain
provisions of emergency law. 11

National Emergencies Act

The Special Committee's recommended legislation (S. 3957) was
introduced in the Senate on August 22, 1974, by Senator Church for

10 See U.S. Congress. Senate. Special Committee on the Termination of the National
Emergency. National Emergency. Hearings, 93d Congress, 1st session. April 11, 12 ;
July 24; [and] November "28, 1073. Washington, U.S. Cxovt. Print. Off.. 1973.

11 These views have been collected and published in U.S. Congress. Senate Special
Committee on National Emergencies and Delegated Emergency Powers. Executive Replies :
Evaluation of Emergenev Powers Statutes. Committee print, 93d Congress, 2d session.
Washington, U.S. Govt. Print. Off., 1974 ; . . . Executive Replies : Sum-
maries of the Executive Branch and Committee Recommendations. Committee print, 93d

Congress, 2d session. Washington. U.S. Govt. Print. Off., 1974 ; . . .

Executive Replies : Statutes at Large. Committee print, 93d Congress, 2d session, Wash-
ington, U.S. Govt. Print. Off., 1974.

himself and seven other members of the panel (Senators Mathias,
Case, Hansen, Hart, Pearson, Pell and Stevenson) as well as Sena-
tors Lawton Chiles (D.-Fla.) and Sam Erwin (D.-N.C.). 12 Oth*r
subsequent co-sponsors included Senators Harrison Williams (D.-
N.J.), Edmund Muskie (D.-Maine), Jacob Javits (R.-N.Y.), Abra-
ham Ribicoff (D.-Conn.) and William Roth (R.-DeL). Referred to
the Committee on Government Operations, the measure was reported
(S. Rept 93-1193) on September 30 without public hearings or amend-
ment. The bill was debated on October 7, at which time Senator
Mathias offered certain amendments suggested in behalf of the Presi-
dent by the Office of Management and Budget which were accepted,
and adopted. 13 Summarizing the proposed amendments, Senator
Mathias said :

What they do is very simple. They extend the grace period' [regarding the re-
peal of certain emergency power provisions of the U.S. Code] provided in the
bill from nine months to a year.

They provide that while Congress can terminate a national emergency at
any time by a concurrent resolution, there will be no automatic termination
after six months if there is no affirmative action. This has been replaced by a
requirement for the Congress to meet every six months to consider whether
to terminate an emergtncy. An expedited privileged procedure would assure
consideration and a vote should the Congress so decide.

We have reduced the list of statutes to be repealed. In working with the
other body, partially as a result of special committee studies, most of the pro-
visions that have been deleted from our original list are to be taken care of in
various deadwood projects by the Codification Committee of the House of
Representatives.

There are six statutes which are to be exempted from the provisions of this
act. These statutes include Trading With the Enemy Act, a Ready Reserve
provision, purchasing contract lease and claims authorities believed by the
Executive branch to be absolutely essential for the operation of government.
There is a requirement that the committees with jurisdiction over these provi-
sions must make a study and report recommendations within nine months about
modifications or any other changes to be made.

Finally, the requirement for accounting of expenditures incurred under the
authority of emergency powers statutes . . . has been included. 14

Although a version of the Special Committee's recommended legis-
lation was introduced in the House (H.R. 16668) by Representative
Peter Rodino, Jr. (D.-N.J.) on September 16, the Committee on the
Judiciary, to which the measure was referred, did not have an op-
portunity to consider either that bill or the Senate adopted proposal
due to the press of other business, chiefly the impeachment of Presi-
dent Richard M. Nixon and the nomination of Nelson A. Rockefeller
to be Vice President of the United States. 15 The National Emergen-
cies Act thus failed to obtain passage in both Houses of Congress be-
fore the expiration of the 93rd Congress.

With the convening of the next Congress, the proposal was again
introduced in both chambers. In the House, Representative Rodino
offered the bill (H.R. 3884) for himself, Representatives Walter
Flowers (D.-Ala.), George Danielson (D -Calif.), Barbara Jordan
(D.-Tex.), Romano Mazzoli (D.-Ky.), Edward Pattison (D.-N.Y.),
and Hamilton Fish, Jr. (R.-N.Y.) on February 27, 1975. 16 Special

12 Congressional Record, v. 120. August 22. 1974 [Daily edition], S15784-15794.

13 Ibid., October 7. 1974 [Daily edition], pp. S18356-S18367.
u 7fti<7.. p. 18357.

15 See Ibid., September 16. 1974 [Daily edition], p. H9266.

1C See Ibid., v. 121, February 27, 1975 [Daily edition], p. H1260.

66-474 O - 76 - 2

Committee Co-chairmen Church and Mathias introduced an identical
measure (S. 977) in the Senate on March 6. 17

Hearings were held in the House before the Subcommittee on Ad-
ministrative Law and Government Relations, under the chairmanship
of Representative Flowers, on March 6, 13, 19 and April 9. 18 Testi-
mony was taken from a number of government witnesses; the bill
was subsequently marked up and, on April 15, the Subcommittee re-
ported, by a 4-0 vote, an amended version of the measure to the full
Committee on the Judiciary. Major changes in the proposal included
the addition of further emergency power provisions of the U.S. Code
to the exemption from termination section of the legislation and an
extension of the one year grace period on terminated provisions to two
years. On May 21, the full Committee, by voice vote, reported (H.Rept.
94-238) the bill with technical amendments. 19

During the course of debate on the proposal on September 4, the
House agreed to the Committee amendments, adopted an amendment
providing that national emergencies end automatically one year after
the declaration date unless the President transmits a message to Con-
gress and prints notice in the Federal Register that the emergency
is still in effect, and accepted the bill on a 388-5 yea-and-nay vote. 20
The measure was then sent to the Senate and referred to the Committee
on Government Operations. 21

On May 28, 1976, the Senate Special Committee on National Emer-
gencies and Delegated Emergency Powers issued its final report
(S. Kept. 94—922). After summarizing its activities and efforts, the
Special Committee urged immediate passage of the National Emer-
gencies Act, close congressional committee scrutiny of the statutes
exempted from the rescinding provisions of the Act, careful congres-
sional review of future requests for permanent statutory emergency
authority, vigilance in detecting potential efforts to bypass or circum-
vent the intent of the Act. congressional inquiry into emergency pre-
paredness efforts conducted by the Executive, congressional prepara-
tion for dealing with a declared emergency (including continuous
review of the canon of emergency law), striving to halt open-ended
grants of authority to the Executive, more vigorous investigation and
oversight of delegated powers, and improvement of accountability
procedures with regard to Executive decision-making. 22 The Special
Committee's mandate and operational authority terminated on April
30.

The Senate Committee on Government Operations subsequently re-
ported (S. Kept. 94-1168) the National Emergencies Act on August
26 with one substantive and several technical amendments. According
to the panel's report :

With respect to the substantive amendment, following consultations with
several constitutional law experts, the committee concluded that section 201(a)

17 Sep Ibid, March 6, 1975 [Daily edition], p. S3202.

18 U.S. Congress. House Committee on the Judiciary. Subcommittee on Administrative
Law and Governmental Relations. National Emerqency Act. Hearings, 94th Congress. 1st
Session. March 0. 13. 19. and April 9, 1975. Washington. U.S. Govt. Print. Off., 1975.

19 Congressional Record, v. 120. May 21. 1975 [Daily edition], p. H4577.

20 Ibid., September 4. 1975 TDailv edition], p. H8327-H8341.

21 Tbid., September 5. 1975 TDailv edition], p. S15373.

22 U.S. Congress. Senate. Special Committee on National Emergencies and Delegated
Emergency Powers. National Emergencies and Delegated Emergency Poicers. Washington,
U.S. Govt. Print. Off., 1976. 38 p. (94th Congress, 2d session. Senate. Report No. 94-922).

is overly broad, and might be construed to delegate additional authority to the
President with respect to declarations of national emergency. In the judgment
of the committee, the language of this provision was unclear and ambiguous
and might have been construed to confer upon the President statutory authority
to declare national emergencies, other than that which he now has through
various statutory delegations.

The Committee amendment clarifies and narrows this language. The Committee
decided that the definition of when a President is authorized to declare a national
emergency should be left to the various statutes which give him extraordinary
powers. The National Emergencies Act is not intended to enlarge or add to Execu-
tive power. Rather the statute is an effort by the Congress to establish clear
procedures and safeguards upon him by other statutes.

Therefore, the Committee : niendment makes no attempt to define when a dec-
laration of national emergency is proper. The amendment simply requires the
President to transmit to the Congress and publish in the Federal Register a
Presidential declaration of national emergency authorized by other Acts of
Congress. 23

The following day the Senate adopted the bill with all committee
amendments and returned the measure to the House. 24 On August 31
the House agreed to the Senate amendments, clearing the proposal for
the President's signature. 2 "

President Ford signed the bill into law (Public Law 94-412) on
September 14, 1976. 20

Other Emergency powers action

During the course of the adoption of the National Emergencies Act,
three other significant emergency powers developments occurred. Al-
though efforts were made to continue the authority, a title of the
Federal Civil Defense Act of 1950 (50 U.S.C. App. 2297) granting
the President or Congress power to declare a civil defense emergency
whenever an attack on the United States occurred or was anticipated
expired on June 30, 1974 after the House Committee on Rules failed
to report on the measure extending the statute. 27 Thus, a means of
declaring an emergency was terminated and statutes activated pursu-
ant to this provision were relegated to permanent dormancy.

By proclamation of February 19. 1976 (41 F.R. 7741), 'President
Ford gave notice that E.O. 9066, providing for the interment of
Japanese- Americans during World War II. was cancelled as of the
issuance of the proclamation (11 F.R. 1) formally establishing the
cessation of the hostilities of World War II on December 31. 1946.
Certain statutory authority (18 U.S.C. 1383) relevant to this Execu-
tive older is cancelled by the National Emergencies Act. 28

Also, legislation was adopted (Public Law 94-286) on May 14,
1976. granting the President the authority to order certain selected
members of an armed services Reserve component to active duty other
than during a state of war or a condition of national emergency. Pre-

23 U.S. Congress. Senate. Committee on Government Operations. National Emergencies
Act. Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session. Senate. Report
94-1168), p. 3.

2 * See Congressional Record, v. 112, Aug. 27, 1976 : S14840-S14844.

23 See ibid., Aug. 31. 1976: H9253.

26 See Weekly Compilation of Presidential Documents, v. 12, Sept. 20, 1976; 1340.

27 See U.S. Congress. House. Committee on Armed Services. Full Committee Considera-
tion of . . . H.R. 13329. . . . Hearings, 93d Congress, 2d session July 25, 1974. Wash-
ington. U.S. Govt. Print. Off., 1974. 30 p. ; . . . Extending Civil De-
fense Emergency Authorities. Washington, U.S. Govt. Print. Off., 1974. 22 p. (93d Cong.,
2d session. House. Report No. 93-1243).

28 However, not all such authority is cancelled by the statute: see 10 U.S.C. 2152.

viously, this authority (10 U.S.C. 673) had been limited to a "time of
national emergency declared by the President" or "when otherwise
authorized by law." 29

29 See U.S. Congress. Senate. Committee on Armed Services. Subcommittee on Manpower
and Personnel. Military Manpower Issues of the Past and Future. Hearings, 93d Congress,
2d session. August 13 and 14, 1974. Washington, U.S. Govt. Print. Off., 1974, pp. 7-9, 17,

32-36, 38-40 ; . . . ; Reserve Call-Up. Hearings, 94th Congress,

1st session. July 30, 1975. Washington, U.S. Govt. Print. Off., 1975. 35 p. ; . .

Enabling the President to Authorize the Involuntary Order to Active Duty of

Selected Reservists for a Limited Period Without a Declaration of War or National Emer-
gency. Washington, U.S. Govt. Print. Off., 1975. (94th Congress, 1st session. Senate.

Report No. 94-562) 23 p. ; . House. Committee on Armed Services. Full Committee

Consideration of S. 2115. . . . Hearings, 94th Congress, 2d session. April 17, 1976. Wash-
ington, U.S. Govt. Print. Off., 1976 ; 4 p. ; . . . Authority For Limited

Reserve Mobilization. Washington, U.S. Govt. Print. Off., 1976. (94th Congress, 2d session.
House. Report No. 94-1069) 27 p. ; Robert K. Musil. Troops for a Five-Star President.
The Nation, v. 222, Feb. 28, 1976 : 238-241.

The Special Committee on the Termination of the National

Emergency

and

The Special Committee on National Emergencies and
Delegated Emergency Powers

1. Initial authorizing resolution

2. Recommended National Emergencies Act

3. Final report

INITIAL AUTHORIZING RESOLUTION OF THE
SPECIAL COMMITTEE

[Congressional Record— v. 118, May 23, 1972— pp. S18367-S18369]

Senate Resolution 304 — Submission of a Resolution Authorizing
Expenditures by the Special Committee on Termination of the
National Emergency

(Referred to the Committee on Foreign Relations.)

Mr. Mathias. Mr. President, on behalf of Senators Pell, Hart,
Church, Gravel, Eagleton, Cooper, Stevenson, Williams, Javits,
Mansfield, Hartke, Case, Chiles, Cranston, and myself, I submit a
resolution which is 20 years overdue. As my colleagues will recall, last
year, with the cosponsorship of 15 other Senators, I submitted Sen-
ate Concurrent Resolution 27 to establish a special joint committee to
study the effects of terminating the state of national emergency de-
clared by President Harry Truman in 1950. Today I am introducing a
revised version of that resolution which reflects its consideration by
the Senate Foreign Relations Committee, the Department of State,
and a variety of concerned citizens and groups throughout the country.

It may surprise some to learn that we are still in a state of national
emergency proclaimed in the depth of the Korean War. And that
while the Korean War has passed into history, the emergency pro-
claimed to deal with that war remains in force.

Based on authority granted by the Emergency Banking Act of 1933,
a President can, by the simple expedient of declaring a national emer-
gency, assume a vast web of powers rendering the Congress expend-
able. This is not simply an interesting anachonism without practical
force. The powers available to the President under this state of emer-
gency are not trivial — fully some 200 special powers accrue to the
President from it. In January, 1968, for example, President Johnson
used it to control American investments abroad in an effort to ease
that year's balance-of -payments crisis. In February, 1971, President
Nixon invoked the same authority to suspend the provisions of the
Davis-Bacon Act.

In this past year, we have witnessed a striking application of Presi-
dential emergency powers. With a single speech on August 15, Presi-
dent Nixon did more than months of Senate hearings to dramatize
the enormous arsenal of powers within the grasp of the Executive.
Wielding authority granted him by law, the President drastically
changed the economic course of the Nation and the world. By the time
Congress returned three weeks later, it was required to legislate in a
radically altered political and economic context.

(13)

While the President's new economic policies represent a bold and
necessary response to a serious crisis and they have my support, the
powers he was able to invoke emphasize anew the scope of authority
which Congress has relinquished to the Office of the President. Thus, in
adding power over the dollar to his command of American military
forces and his influence over mass media, the President has lent sup-
port to the conclusion of Professor Duane Lockard, chairman of the
Department of Politics at Princeton, that —

In essence the Presidency has become an elective kingship with decisive power
in a broad range of matters . . . He can start a war or end one ; he can breathe
life into a domestic project or smother it.

This situation is not without legislative precedent. Alas, Congress
has frequently been accomplice in its own decline, conceding initiatives
to the Executive and tolerating procedural abuses when their ends
were agreeable. One need only name the Formosa Resolution of 1955,
the Middle East Resolution of 1957, the Cuba Resolution of 1962, and
the Gulf of Tonkin Resolution of 1964 to illustrate how readily Con-
gress delivered up to the President large elements of its constitutional
jurisdiction.

Mr. President, the resolution which I am introducing today seeks to
restore the constitutional balance between the Presidency and the Con-
gress. It establishes a bipartisan Senate committee to study the prob-
lems which may arise as the result of terminating our protracted state
of national emergency and to consider the necessary or desirable legis-
lative actions toward this end. It is expected that the committee's rec-
ommendations would, among other things, have the effect of restoring
to Congress its full constitutional authority to regulate commerce, and
would clearly define a national emergency. Together with the War
Powers bill which was passed by the Senate in April, this would serve
to assure that emergency powers would only be applied for the dura-
tion of genuine emergencies.

In the effort to restore the constitutional balance between the Execu-
tive and Legislative branches of our Government, the War Powers bill
and now the emergency pow T ers resolution, represents a good start. We
must press forward to see them passed this year. And we must repel
any effort to bring them into the arena of partisan politics in this elec-
tion year. Restoring to Congress its constitutional responsibility is an
effort which must be joined by Republicans and Democrats, liberals
and conservatives. Can we really afford the cavalier disdain of George
Washington Plunkett, a Tammany Hall ward heeler who once asked :

What's the Constitution among friends?

I believe not. I believe it is now our task to press on in trying to make
the Constitution work — among friends.

Mr. President, upon introduction of my emergency powers resolu-
tion last year, I spoke at length about the long and lamentable history
of accumulation of power in the office of the President. I do not wish to
take up my colleague's time today by reiterating my remarks, but I ask
unanimous consent that they be printed in the Record at this point,
together with the text of my resolution.

[There being no objection, the remarks and resolution were ordered
to be printed in the Record, as follows :]

Remarks of Mr. Mathias

Mr. Mathias. Mr. President, last year, Congress revoked the Gulf of Tonkin
Resolution of 1964. It was a first step in the long-overdue effort to restore to
Congress its responsibilities under the Constitution for questions of war and
peace.

In February of this year, Senator Javits introduced S. 731, A Bill to Regulate
Undeclared War. Also in February, Senator Church introduced Senate Joint
Resolution 48 to repeal the Formosa Resolution of 1955. I was pleased to co-spon-
sor both. In the next weeks, I shall introduce legislation to repeal the Middle East
Resolution of 1957 and the Cuba Resolution of 1962.

Today, I rise to present a Senate Concurrent Resolution aimed at terminating
the state of national emergency proclaimed by President Truman in December,
1950, in the depth of the Korean War. It is a sad paradox that this country h'as
remained officially in a state of emergency since that time. Indeed, it may be
useful at this point briefly to review how Congress — with barely a whimper — re-
linquished important parts of its constitutional authority to the office of the
President.

On May 9, 1933, at a moment of dire Depression emergency, Franklin D. Roose-
velt convened the Congress and demanded, in effect, that it revamp the Constitu-
tion before midnight. The purpose of the reform was to make Congress — and the
Constitution — optional at the discretion of the President, as the national interest
required.

The demand came as part of the Emergency Banking Act, an omnibus bill re-
organizing the nation's then collapsing banking system and retroactively legitimiz-
ing the President's Bank Holiday proclamation of three days before. Referred to
the Banking and Currency Committee — with instructions that it be reported out
in an hour — the bill was not printed and was not available for Senators to read.
Senator Long complained that he did not know what was in it until it was read
by the clerk. Most Senators indicated that they had grave reservations about
what they understood to be the bill's provisions and Senator Long protested the
extraordinary powers it granted to the President. But in the extremity of the
crisis at hand, Congress felt it had to act immediately as the President demanded.
The bill was passed by both Houses before midnight and the American constitu-
tional Republic has been in its Damoclean shadow ever since.

The key provision, not much remarked by the Congress at the time, came in an
amendment, to section 5b of the Trading With the Enemy Act of 1917. As enacted
in 1917, section 5b shifted from Congress to the President the power to regulate
trade and financial transactions between Americans and foreigners in wartime.
The 1933 amendment to 5b authorized the President — by the simple expedient of
declaring a national emergency — to assume in peacetime these extensive wartime
emergency powers.

By declaring in the 1933 amendment that the President could assume emergency
powers by declaration in peacetime, Congress established a principle with rever-
berations going far beyond the legislation at hand. For the courts have interpreted
the principle as creating a virtually unlimited Executive prerogative that now
applies to some 200 laws granting special powers to the President during national
emergencies. But neither Congress nor the courts has set criteria to define the
kind of crisis which would justify invocation of these multifarious powers. Since
1933 they have been available essentially as the President wishes.

In accord with President Roosevelt's approach, the President is left to deter-
mine by himself when a national emergency exists and when it ends — when the
Executive should have access to the near dictatorial authority conveyed in emer-
gency legislation. The President decides when he should share power with Con-
gress as the Constitution prescribes, and when Congress can be made optional by
proclamation.

This assignment of emergency powers has worked very smoothly over the years.
Since that dire extremity of 1933, there have been six Presidents — four Democrats
and two Republicans. They have disagreed on many issues. But they have been
unanimous on the question of when the country is in a state of national emer-
gency and when the Congress, on a wide range of issues, is optional. Their answer,
quite simply put — in a word — is : always. In the last 37 years, the country has
passed through many vicissitudes of war and peace. But Presidential powers have
been continuously "at war." Not once during that period has a President allowed
his special powers to lapse. The result, described by Jeffrey G. Miller and John

R. Garson in an excellent article in the February, 1970, issue of the Boston College
Industrial and Commercial Law Review, is that "some 60 percent of the nation's
population have lived their entire lives under a continuous unbroken chain of
national emergencies."

A court did judicially acknowledge — in 1962 — that the Depression had ended.
But no authority has yet recognized the end of the Korean emergency, proclaimed
by President Truman on December 16, 1950, and still in effect today. Since the
President declared with reference to Korea that "world conquest by communist
imperialism is the goal of the forces of aggression," the State Department has
interpreted the emergency as meaning the Cold War.

This interpretation, however, has not limited the emergency powers to military
matters affecting the protracted conflict with the Communists. The Korean au-
thority, in fact, was most recently invoked in 1968 in relation to our economic
competition with our European allies. President Johnson felt he would have diffi-
culty securing from Congress the broad powers he needed to deal with the deficit
which had been emerging for several years in the nation's balance of payments.
Yet the Constitution clearly reserves to the Legislative branch all powers for reg-
ulating foreign commerce. So the President invoked the emergency powers
granted in 1950 in relation to the Korean War and signed Executive Order 11387,
''Governing Certain Transfers Abroad." The Department of Commerce immedi-
ately issued the Foreign Direct Investment Regulations (FDIR). The Executive
Order and the FDIR restrict the amounts of capital that American investors may
transfer to or accumulate in foreign affiliates and compel repatriation of short-
term liquid balances such as foreign bank deposits.

Without citation of the Korean AVar powers, these measures clearly represent
an unconstitutional encroachment on legislative authority. The courts have up-
held them, however, and they remain the law of the land. It is currently the law
of the land, therefore ; that the state of national emergency proclaimed by Presi-
dent Truman in 1950 in relation to the Korean conflict can be invoked in rela-
tion to a balance of payments deficit 18 years later. Similarly, regulations against
gold hoarding, activated by the Depression emergency, are continued under the
1950 proclamation. Other measures invoked under section 5b pursuant to the
Korean proclamation include the Foreign Assets Control Regulations, the Egyp-
tian Assets Control Regulations, and the Cuban Assets Control Regulations. The
Cuban trade embargo of 1962 was also based in part on the 1950 emergency.

Among the nearly 200 other emergency laws are measures permitting the Pres-
ident to sell stocks of strategic materials, revoke leases on real and personal
property, suspend rules and regulations applicable to broadcasting stations,
detain enlisted troops beyond the term of their enlistments, detail military
men to the governments of other countries, and exercise control over consumer
credit. Among hundreds of local properties available to the Executive, the
President may take over parts of Howard University, and in my own state of
Maryland, he may close Fort McHenry — the birthplace of the "Star Spangled
Banner" — and "use it for such period thereafter as the public needs may require."

These powers infringe on so many crucial constitutional rights and principles
that collectively they may be seen as placing our system of democratic govern-
ment in jeopardy. Certainly the deprivation of rights and property is author-
ized without due process. But perhaps most important, these measures threaten
the constitutional balance of powers between the Executive and Legislative
branches. Because a state of official emergency has continued since 1933 —
and has been upheld by the courts to validate actions unrelated to the original
crisis — the national emergency powers have accumulated and become
institutionalized in the Executive. The Presidency, already enhanced by modern
trends, has been further aggrandized by the paradox of the continuous emer-
gency.

Unless we accept the principle of an optional Constitution and an optional
Congress, we must reject the concept of national emergencies declarable by the
President at his discretion in peacetime without termination dates. Since this
concept has been upheld in essence by the Courts, it is up to the Congress to
recover by legislation the constitutional role that it has allowed the Executive
to usurp. We must reassert the principle that emergency powers are available
only for brief periods when Congress is unable to act and for purposes directly
related to the emergency at hand.

This is easier said than done. We discover that the continuous and cumulative
and institutionalized emergency is also almost irrevocable. So many Executive

agencies and procedures are rooted in emergency powers that it is extremely
difficult to rescind them without major administrative disruptions. With this
in mind, the distinguished Majority Leader, Mr. Mansfield, joined with me dur-
ing the last session in S.J. Resolution 166, a resolution which, among other
things, proposed the creation of a special committee to explore with the execu-
tive the consequences of terminating the Korean Emergency. In the aftermath
of the Cambodia incursion, however, our proposals were not acted upon. And
so I am now reintroducing the resolution as a Senate Concurrent Resolution.
It calls for the establishment of a commission to study and make recommenda-
tions terminating the state of national emergency.

It is to be expected that the commission's recommendations would, among other
things, have the effect of restoring to Congress its full constitutional authority
to regulate commerce, and would clearly define a national emergency. To-
gether with S. 731. An Act to Regulate Undeclared War. which was introduced
in February by the distinguished Senator from New York, Mr. Javits, this
would serve to assure that emergency powers would only be applied for the
duration of genuine emergencies. The Constitution did not envision a state of
national emergency to be the normal state of affairs.

Under the best of circumstances, the Congress will not find it easy to main-
tain its historic constitutional role in the modern age. Modern communications,
national interdependence, and international involvement coverage to enhance the
Presidency ; real emergencies continually arise requiring the kind of decisive
response the Executive is best equipped to give. But if the Congress allows
these national Executive advantages to be expanded by special emergency pow-
ers responding to unspecified emergencies without determination or limit, the
balance of powers between the branches of our government may be irreparably
broken.

I believe that we do face today a national emergency — even a paradoxically
continuous one. It emerged during the Depression and has been with us for
several decades. It is a crisis that throws our whole system of constitutional
government into jeopardy. This emergency — if I may use the term so loosely —
is the atrophy of Congress. It is not an emergency which calls for the decisive
exercise of Executive powers. It calls for the decisive recovery of legislative
powers.

Only Congress can redeem itself ; but in serving itself, it can also save the
Constitution. And I believe that to save the Constitution is tx> save the most
precious heritage of our country.

S. Res. 304

Whereas, the existence of the state of national emergency proclaimed by the
President on December 16, 1950, is directly related to the conduct of United
States foreign policy and our national security, now, therefore, be it

Resolved. That (a) there is hereby established a special committee of the
Senate to be known as the Special Committee on the Termination of the Na-
tional Emergency (hereinafter referred to as the "Special Committee").

(b) The Special Committee shall be composed of eight Members of the Senate
equally divided between the Majority and Minority parties to be appointed by the
President of the Senate, four of whom shall be members of the Committee on
Foreign Relations.

(c) The Special Committee shall select a chairman and vice chairman from
among its members. A majority of the members of the Special Committee shall
constitute a quorum thereof for the transaction of business, except that the
Special Committee may fix a lesser number as a quorum for the purpose of taking
testimony. Vacancies in the membership of the Special Committee shall not affect
the authority of the remaining members to execute the functions of the Special
Committee.

Sec. 2. (a) It shall be the function of the Special Committee to conduct a study
and investigation with respect to the matter of terminating the national emer-
gency proclaimed by the President of the United States on December 16. 1950.
and announced in Presidential Proclamation Numbered 2914, dated the same
date. In carrying out such study and investigation the Special Committee shall :

(1) consult and confer with the President and his advisers ;

(2) consider the problems which may arise as the result of terminating such
national emergency ; and

(3) consider what administrative or legislative actions might be necessary
or desirable as the result of terminating such national emergency, including con-
sideration of the desirability and consequences of terminating special legislative
powers that were conferred on the President and other officers, boards, and com-
missions as the result of the President proclaiming a national emergency.

Sec. 3. For the purposes of this resolution the Special Committee is authorized
from date of agreement to this Resolution through February 28, 1973, in. its
discretion (1) to make expenditures from the contingent fund of the Senate,
(2) to employ personnel, (3) to hold such hearings, (4) to sit and act at such
times and places during the sessions, recesses, and adjourned periods of the
Senate, (5) to require by subpoena or otherwise the attendance of such witnesses
and the production of such correspondence, books, papers, and documents, (6)
to take such testimony, (7) to procure the services of individual consultants
or organizations thereof, in accordance with the provisions of section 202(i) of
the Legislative Reorganization Act of 1946, as amended, and (8) with the prior
consent of the Government department or agency concerned and the Committee on
Rules and Administration, to use on a reimburseable basis the services of person-
nel of any such department or agency.

Sec. 4. The expenses of the Special Committee under this resolution shall not
exceed $100,000, of which amount not to exceed $15,000 shall be available for the
procurement of the services of individual consultants, or organizations thereof
as authorized by section 202 (i) of the Legislative Reorganization Act of 1946, as
amended.

Sec 5. The Special Committee shall report its findings, together with such
recommendations for legislation as it deems advisable, to the Senate at the
earliest practicable date, but not later than February 28, 1973.

Sec. 6. Expenses of the Special Committee under this resolution shall be paid
from the contingent fund of the Senate upon vouchers approved by the chairman
of the Special Committee.

93d Congress ) SENATE ( Report

2d Session f 1 No. 93-1170

A RECOMMENDED NATIONAL EMERGENCIES ACT

September 24, 1974. — Ordered to be printed

Mr. Church, from the Special Committee on National Emergencies
and Delegated Emergency Powers, submitted the following

INTERIM REPORT

By the Special Committee on National Emergencies and Dele-
gated Emergency Pow t ers in Support of a Recommended Na-
tional Emergencies Act

The Special Senate Committee on National Emergencies and Dele-
gated Emergency Powers, pursuant to Senate Resolution 304, June 23,
1972, Senate Resolution 9, January 6, 1973, and Senate Resolution 242,
January 23, 1974, submits herein an interim report in support of rec-
ommended legislation : A National Emergencies Act (see attachment).
Because of its critical importance, the Special Committee recommends
that this legislation, approved unanimously by its eight members, be
acted upon at the earliest opportunity.

It is the Special Committee's view that legislative action is required
because it is distressingly clear that our Constitutional government
has been weakened by 41 consecutive years of emergency rule. There
are now in effect four Presidential^ proclaimed states of national
emergency which give the President the authority to rule the United
States outside of normal Constitutional processes: The national
emergency declared by President Roosevelt in March 1933 to fight
the Great, Depression, the national emergency proclaimed by Presi-
dent Truman in December 1950 during the Korean conflict, the
national emergency declared by President Nixon, March 23, 1970 to
handle the Post Office strike, and the August 15, 1971 national emer-
gency proclaimed to meet balance of payments and other international
economic problems.

A majority of the American people have lived all their lives
under emergency government. During this period of four decades, the
President, through what is now over 170 legally delegated powers, has

had at hand the power to rule the United States outside of normal
Constitutional processes.

There is no longer any valid reason for emergency rule to continue.
In the judgment of the Special Committee, our government would
be strengthened by bringing to an end all declared states of national
emergency presently in existence, and this should be done as soon as
possible.

The four proclamations of national emergency, together with the
authority delegated by emergency powers statutes, have provided
the President — any President — with extraordinary powers, among
others, to seize property and commodities, organize and control the
means of production, call to active duty 2.5 million reservists, assign
military forces abroad, seize and control all means of transportation
and communication, restrict travel, and institute martial law, and, in
many other ways, manage every aspect of the lives of all American
citizens.

A few examples from the 470 emergency statutes now in force should
make it clear what kinds of extraordinary discretionary power have
been delegated to the President :

Statute 10 USC 712 permits the President "during a war or a
declared national emergency" to "detail members of the Army,
Navy, Air Force, and Marine Corps to assist in military matters"
in any foreign country.

During the war in Southeast Asia and during +be Berlin air-
lift on several other occasions, the Department of Defense used
a little known law of more than 100 years' vintage. The Feed
and Forage Act of 1861, 41 USC 11, to fund certain military
activities not previously authorized bv the Congress. The original
intent of the Feed and Forage Act was to enable the United
States cavalry posted on the Western frontier to requisition feed
for its horses and other supplies when Congress was out of session
and thus unable to provide the necessary funds. This law was
kept on the books and was used for deficiency spending for food,
medicines, clothing and other similar supplies when Congress
was not in ses e ion. In recent years this law has been used to spend
funds not authorized by the express will of the Congress even
when in session.

Under 10 U.S.C. 333, the President can use the militia or armed
forces to suppress "conspiracy," if it is likely that "any part"
of the people in a state will be deprived of some constitutional
right, and the stat^ itself refuses to act. Under this statute, the
President conceivably could circumvent Article IV, Section 4,
of the Constitution even before waiting for state legislatures or
state executives to request Federal troops.

Under 18 USC 1383, the President has authority to declare
any part or all of the United States military zones. People in
such zones can be iailed for a year for violating any "executive
order of the President." Would these arrests be reviewable in
court? Tt is not clear. Judicial review of agency actions is guar-
anteed in 5 USC 702, but 5 USC 701 excludes actions taken under
declarations of martial law.

S.R. 1170

A President could make use of Public Law 733, which expresses
the determination of the United States to prevent "by whatever
means may be necessary including the use of arms," any "sub-
versive" activities by the government of Cuba.

Under 47 USC 308, the Federal Communications Commission
could, during a national emergency, modify existing broadcast
licenses under terms it might prescribe.

Under 47 USC 606, the President can amend "as he sees fit"
the rules and regulations of the Federal Communications Com-
mission and, in particular, can "cause the closing of any facility
or station for wire communications."

If the President finds the nation "threatened by attack," he
could, under 44 USC 1505, cease to publish his regulations in the
Federal Register if he determines that it is "impracticable." This
could open the Avay to promulgation of secret laws.
At the present time, only a small portion of these 470 delegated
emergency powers is being used. This is proof that there is no longer
an '^emergency" that requires extraordinary delegations of power. In
the view of the Special Committee, this body of potentially authori-
tarian power remains a hazard to democratic government. Aggressive
Presidents, permissive Congresses, and a long series of successive crises,
have all contributed to the erosion of the structure of divided powers,
the bedrock of our Constitutional system of government.

The study undertaken by the Special Committee of how the four
states of national emergency came into being, and how the over 470
emergency statutes became the law of the land, provides a disturbing
explanation of the deterioration of law-making during the past four
decades.

In the particular area of emergency powers statutes, the constitu-
tionally prescribed roles of the Legislative and Executive branches
have been reversed. The Special Committee's studies show that in far
too many instances, the Executive branch itself drafted the laws and
cast them in such form as to give itself maximum advantage. It is
understandable that the Executive branch, in drafting laws granting
power to itself, did not provide either for oversight or for termination
by Congress. It is also not surprising that most of these laws were
passed in times of crisis, when because of the urgency, Congress acted
hastily without real scrutiny, without thorough hearings, and without
the deliberation that such legislation should have demanded. For these
reasons, Congress has not exercised its responsibilities prudently; it
has not even reserved for itself the means to recoup its lost powers.

Now, in a time of relative world peace, Congress has the opportunity
to draw back and reexamine how profligately we have dealt with war
and other emergencies. Our sobering experience with the undeclared
Korean and Vietnam wars heightens the necessity to understand the
means available within the Constitution, to meet crisis situations af-
fecting our national security.

The Special Committee has held extensive hearings seeking the
views and advice of the country's most distinguished authorities on
Constitutional government in time of crisis. In addition to scholarly
authorities in the fields of political science and the law, the Special

S.R. 1170

Committee sought the counsel of all the former Attorneys General and
two former Supreme Court Justices, as well as many distinguished
lawyers. On the basis of the suggestions and perspective gained from
these hearings, and from two intensive staff studies of emergency
power statutes and Executive Orders, and upon the basis of the data,
advice and counsel supplied by the Executive branch, the Special
Committee has drafted legislation which would provide :

(1) For the termination of the present states of national
emergency ;

(2) For the establishment of a regularized procedure for the
use of delegated emergency power in future emergencies. The
President could declare a national emergency and in his public
proclamation would cite the specific statutory powers he requires
to meet the emergency. The Congress would have six months to
act to affirm or reject. If Congress takes no action, the state of
national emergency would lapse after six months. The Congress
could extend any state of national emergency by affirmative vote.
But no extension could last for more than six months without
another affirmative vote by the Congress.

(3) For a means of providing accountability for actions taken
pursuant to emergency power statutes in any future emergency ;
and

(4) For a listing of those statutes which both the Executive
branch and the respective standing committees of the Senate agree
can be repealed because they are obsolete.

The recommended legislation, entitled the "National Emergencies
Act," would not come into effect until nine months after its date of
enactment, in order to give Executive branch, agencies and Congres-
sional Committees sufficient time to work out unresolved issues. It is
clear that it may be necessary to cast into permanent form certain
statutes which now are written in a form contingent upon the existence
of a state of national emergency. The grace period would permit all
such matters to be resolved through the normal legislative processes.

The record of cooperation between the Legislative and Executive
branch in working toward a legislative remedy, has been exemplary.
Every department and agency of the Executive branch has coop-
erated with requests from the Special Committee for information in
their areas of jurisdiction. This cooperation, particularly on the part
of the Department of Defense and the Department of Justice, under
three Secretaries of Defense and four Attorneys General respectively,
has been a model of how the two branches can work together. The
Special Committee, for example, would still be laboring through 87
volumes of the Statutes-at -Large to find out exactly what laws were
involved, were it not for the assistance provided by the U.S. Air Force
which had fortuitously put the L.S. Code into its LITE computer sys-
tem located at a base in Colorado. The General Services Administra-
tion and particularly the Federal Register of the National Archives,
provided invaluable help in bringing substance and understanding
into the shadowy world of Executive Orders issued pursuant to states
of emergency. The Justice Department, largely through the counsel
of Attorneys General themselves and the Office of Legal Counsel, has

S.R.

given expert advice to the Special Committee, and we gratefully ac-
knowledge the importance of their assistance.

The Office of Management and Budget has helped the Special Com-
mittee by providing a detailed evaluation of the current utility of
emergency statutes now in force. It is upon the basis of the Executive
branch's coordinated evaluation of these statutes and their evaluation
by the standing committees that the Special Committee was able to
draft a remedy in accord with the Constitutional responsibility of
Congress to make laws. The Special Committee is confident that
Congress should now proceed forthwith to end the four existing states
of national emergency, repeal certain laws that both the Executive
branch and Congress believe obsolete, and to legislate a definite proce-
dure to be used in the event of future national emergencies.

It has been an underlying premise of the Special Committee that
the findings contained in the Youngstown Steel Case of 1952, particu-
larly the opinion of Justice Jackson, provide sound and pertinent
guidelines for the governance of emergency powers. Justice Jackson,
supporting the majority opinion that the "President's power must
stem either from an act of Congress or from the Constitution itself, 1 '
wrote :

* * * emergency powers are consistent with free govern-
ment only when their control is lodged elsewhere than in the
Executive who exercises them. That is the safeguard that
would be nullified by our adoption of the "inherent powers*'
formula. Nothing in my experience convinces me that such
risks are warranted by any real necessity, although such pow-
ers would, of course, be an executive convenience.

In view of the ease, expedition and safety with which Con-
gress can grant and has granted large emergency powers,
certainly ample to embrace this crisis, I am quite unimpressed
with the argument that we should affirm possession of them
without statute. Such power either has no beginning or it has
no end. If it exists, it need submit to no legal restraint. I am
not alarmed that it would plunge us straightway into dicta-
torship, but it is at least a step in that wrong direction.* * *

But I have no illusion that any decision by this Court can
keep power in the hands of Congress if it is not wise and
timely in meeting its problems. A crisis that challenges the
President equally, or perhaps primarily, challenges Congress.
If not good law, there was worldly wisdom in the maxim
attributed to Napoleon that "The tools belong to the man who
can use them." We may say that power to legislate for emer-
gencies belongs in the hands of Congress, but only Congress
itself can prevent power from slipping through its fingers.

66-474 O - 76 - 3 S.R. 1170

With all its defects and inconveniences, men have discov-
ered no technique for long preserving free government ex-
cept that the Executive be under the laAv, and that the law be
made by parliamentary deliberations.

In our view. Congress should provide statutory guidelines to assure
the full operation of Constitutional processes in time of war or emer-
gency. This is the best prescription to avoid any future exercise of
arbitrary authoritarian power. For as the Youngstown Case decided,
where there is a statute, the Executive is obliged to use the statutory
remedy; where there are no lawful statutory guidelines is to invite
so-called inherent powers to come into play. There is without question
a need, in the view of the Special Committee, to provide the Executive
branch with an effective, workable method for dealing with future
emergencies in accord with Constitutional processes. The Special Com-
mittee has sought to do this in fulfillment of its mandate.

The Special Committee, therefore, respectfully submits to the Senate,
through the leadership, a legislative proposal with the recommenda-
tion that it be acted upon as soon as possible.

During the past year, the Special Committee requested the assist-
ance of the Majority and Minority Leaders in the preparation of
guidelines for procedural actions to be taken on the part of the Senate
in possible future emergencies. The actions already taken by the lead-
ership, in the view of the Special Committee, meet the needs that might
reasonably be required by future emergencies.

In order to assist the Senate in its consideration of the recommended
legislation, the Special Committee urges members of the Senate to
examine the following Special Committee documents which detail the
many problems and dangers that emergencies pose to Constitutional
government, the nature of the American experience, and the reasons
for our recommended course of action.

1. ''Emergency Powers Statutes : Provisions of Federal Law Now in
Effect Delegating to the Executive Extraordinary Authority in Time
of National Emergency v ; September 1973. This compilation of emer-
gency powers delegated by statute to the President for use in times of
war or national emergency contains a brief introduction to the history
of emergency rule in the United States and the adverse effects that con-
tinued emergency rule has upon Constitutional government.

2. "Executive Orders in Times of War and National Emergency" ;
June 1974. This compilation of Executive Orders issued pursuant to
war or national emergency contains a brief historical review of how
Presidents give orders to execute the law. The report documents the
lack of legal accountability in many important areas of public policy
for orders given by the President. This is an area that requires re-
medial legislation.

8. "Hearings: Part 1 — Constitutional Questions Concerning Emer-
gency Powers"; April 11, 12, 197o. Testimony was taken from po-
litical scientists Dr. Robert S. Rankin, Duke University: Professor
Cornelius P. Cotter, University of Wisconsin; Professor J. Malcolm
Smith, California State University; and legal scholars Dr. Adrian S.
Fisher, Georgetown University Law Center and Dr. Gerhard Casper,
University of Chicago.

S.R. 1170

"Hearings : Part 2 — Views of Former Attorneys General" ; July 24,
1973. Witnesses were Justice Tom C. Clark, Nicholas deB. Katzen-
bach, and Ramsey Clark.

"Hearings: Part 3 — Constitutional Questions Concerning Emer-
gency Powers" ; November 28, 1973. Former Attorney General Elliot
L. Richardson and former Solicitor General of the U.S. Erwin N.
Griswold, testified.

[Attachment]

Recommended Legislation

Approved Unanimously by the Special Committee July 11, 1974

To terminate certain authorities with respect to national emergencies
still in effect, and to provide for orderly implementation and termi-
nation of future national emergencies

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "National Emergencies Act."

TITLE I— TERMINATING EXISTING DECLARED
EMERGENCIES

TERMINATING powers and authorities

Sec. 101. (a) All powers and authorities conferred by law upon the
President, any other officer or employer of the Federal Government,
or upon any department, agency, independent establishment, or any
other body of the Federal Government, and all powers and author-
ities conferred by any Executive order pursuant to law as a result
of the existence of any national emergency in effect immediately prior
to the two hundred and seventy-first day after the date of enactment
of this Act, are terminated on such two hundred and seventy-first day.

(b) For the purpose of this section, the words "any national emer-
gency in effect" mean a general declaration of emergency made by the
President pursuant to a statute authorizing him to declare a national
emergency.

TITLE II— FUTURE NATIONAL EMERGENCIES

Sec. 201. (a) In the event the President finds that the proclamation
of a national emergency is essential to the preservation, protection,
and defense of the Constitution, and is essential to the common de-
fense, safety, or well-being of the territory and people of the United
States, the President is authorized to proclaim the existence of a na-
tional emergency. Such proclamation shall thereupon be made public,
and shall be published immediately in the Federal Register.

S.R. 1170

declares a national emergency, and (2) only in accordance with this
Act, No law enacted after the date of enactment of this Act shall
supersede this title unless it does so in specific terms, referring to this
title, and declaring that the new law supersedes the provisions of this
title.

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec. 301. "Whenever Congress declares war, any provisions of law
conferring powers and authorities to be exercised during time of war
or a national emergency shall be effective from the date of such dec-
laration and remain in effect only in accordance with the provision of
Title IV of this Act.

TITLE IV— FUTURE NATIONAL EMERGENCIES

EXERCISING EMERGENCY POWERS AND AUTHORITIES

Sec. 401. (a) When the President declares a national emergency, or
Congress declares war, any provisions of law conferring powers and
authorities to be exercised during such a national emergency or during
a war declared by the Congress shall be effective and remain in effect
with respect to such emergency or war only in accordance with this
Act.

(b) When the President declares a national emergency, no powers
made available by statute for use in the event of an emergency shall
become operative unless and until the President specifies by Executive
order the specific provisions of law under which he proposed that he,
or other officers of the Executive branch, will act. Such specification
may be made either in the original declaration of a national emergency,
or by subsequent order, but no power granted in the event of the
declaration of a national emergency shall be available unless or until
it has been so specified by the President. All such specifications shall
be published immediately in the Federal Register, and a copy of any
declaration of national emergency, and of such specifications, shall be
transmitted immediately to Congress.

LIMITATIONS ON NATIONAL EMERGENCIES DECLARED BY PRESIDENT

Sec 402. Any national emergency declared by the President in ac-
cordance with this title shall terminate at the end of the one hundred
and eightieth day after the date the national emergency was declared,
and any of the provisions of law referred to in section 101(a) of this
Act shall not be effective after the end of such one hundred and
eightieth day unless Congress by concurrent resolution —

( 1 ) terminates such emergency on an earlier date ; or

(2) continues such emergency to a day specified in the concur-
rent resolution, beyond the end of such one hundred and eightieth
day.

S.R. 1170

Any national emergency declared by the President shall then be
terminated on the date specified in any such concurrent resolution
ref erred to in clauses (1) and (2) of this section, and any such pro-
visions of law shall not be effective after such specified date with re-
spect to that emergency.

TERMINATING AND CONTINUING NATIONAL EMERGENCIES AND WARS

Sec. 403. (a) In no event shall any provision of law referred to in
section 401(a) of this Act remain in effect beyond the end of the
one hundred and eightieth day following the date of the declaration
of the emergency or war unless, in the case of a declaration of war
by Congress, if such declared war has not been terminated in accord-
ance with Constitutional processes.

(b) The provisions of sections 401 and 40-2 of this Act and sub-
section (a) of this section shall apply to any subsequent declaration
of a national emergency or war made with respect to the same emer-
gency or war under subsection (a ) of this section.

TITLE V— MISCELLANEOUS

ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE PRESIDENT

Sec. 501. (a) When the President declares a national emergency,
or Congress declares war, the President shall be responsible for main-
taining a file, and an index thereof, of all Executive orders by the
President, including all instances of the exercise by the President
of any power conferred on him by statutes and the Constitution; all
rules and regulations, by whatever name called, promulgated by any
Executiye department, administration, independent establishment,
board, commission, official, group of officials, or other rulemaking
authority: and all other rules, regulations, orders, by whatever name
called, made directly or indirectly under the expressed or implied au-
thority of the Constitution or any Act of Congress with respect to
the declarations of national emergency or war. The President shall
transmit to the House of Representatives and the Senate and to the
appropriate committees of the Congress the texts of each order, rule,
or regulation, by whatever name called, promulgated by any Execu-
tive department, administration, independent establishment, board,
commission, official, group of officials, or other rulemaking authority;
and all other orders, rules, and regulations, by whatever name called,
made directly or indirectly under expressed or implied authority of
the Constitution or any Act of Congress with respect to the declara-
tion of national emergency or war, as soon as practicable after that
order, by whatever named called, has been issued.

(b) Any such order, rule, or regulation which conforms with pro-
cedures established by law, shall be transmitted to the House of
Representatives and the Senate and to the appropriate committees of
Congress under means to assure its proper confidentiality.

S.R. 1170

TITLE VI— REPEAL OF CERTAIN EMERGENCY
POWER STATUTES

Sec. 601. Except with respect to the rights and duties that matured,
penalties that were incurred, and proceedings that were begun, prior
to the date of enactment of this Act, the following provisions of law
are repealed:

7U.S.C. 1741)
7 U.S.C. 1742)
7 U.S.C. 1743)
7 U.S.C. 1744)
7 U.S.C. 1745)
7 U.S.C. 1746)

7 U.S.C. 1747)

8 U.S.C. 1481 (a) (10))
10 U.S.C. 2667(b)(4))
10 U.S.C. 4025)

10 U.S.C. 9025)
12 U.S.C. 95)
12 U.S.C. 95(a))
12 U.S.C. 249)
12 U.S.C. 1703)
12 U.S.C. 1705)
12 U.S.C. 1748b (a))
16 U.S.C. 831d(m))
18 U.S.C. 1383)
26 U.S.C. 168)
41 U.S.C. 101)
41 U.S.C. 102)
41 U.S.C. 103)
41 U.S.C. 104)
41 U.S.C. 105)

41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.
41 U.S.C.

41 U.S.C.

42 U.S.C.
42 U.S.C.
50 U.S.C.
50 U.S.C.

106)

107)

108)

109)

110)

111)

112)

113)

114)

115)

116)

117)

118)

119)

120)

121)

122)

123)

124)

125)

211b)

1592)

9(e))

App. 1742)

S.R. 1170

94th Congress \ c^mat^ / Report

2d Session / bJ^NAiJi, < Na 94 _ 92 2

NATIONAL EMERGENCIES AND
DELEGATED EMERGENCY POWERS

FINAL REPORT

OF THE

SPECIAL COMMITTEE ON NATIONAL

EMERGENCIES AND DELEGATED

EMERGENCY POWERS

Mat 28, 1976.— Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976

SPECIAL COMMITTEE ON NATIONAL EMERGENCIES AND
DELEGATED EMERGENCY POWERS

FRANK CHURCH, Idaho, Cochairman
CHARLES McC. MATHIAS, Jr., Maryland, Cochairman
PHILIP A. HART, Michigan CLIFFORD P. CASE, New Jersey

CLAIBORNE PELL, Rhode Island JAMES B. PEARSON, Kansas

ADLAI E. STEVENSON III, Illinois CLIFFORD P. HANSEN, Wyoming

Jerry M. Brady, Staff Director
William K. Sawyer, Projeasional Staff
Gayle D. Fitzpatrick, Chief Clerk

(ID

CONTENTS

Page

Preface v

Introduction 1

History of the special committee 1

Committee's findings 3

Two tasks for the committee 4

Hearings 4

Publications on emergency powers 5

Other publications 6

Court guidance 6

Legislative history 8

Work remaining 10

Issues related to the National Emergencies Act 10

Need for an investigation of emergency preparedness efforts conducted

by the executive branch 11

Need for congressional preparations for an emergency and continual

review of emergency law 11

Ending open-ended grants of authority to the Executive 12

Investigating and instituting stricter controls over delegated powers 14

Improving the accountability of Executive decisionmaking 16

Conclusion 18

Appendixes 21

List of publications 21

Errata section 22

Letter to Senator Abraham Ribicoff concerning sourcebook 22

Staff report on emergency preparedness in the United States 25

(HI)

PREFACE

With this Final Report, the Special Committee on National Emer-
gencies and Delegated Emergency Powers (formerly the Special Com-
mittee on the Termination of the National Emergency) concludes its
three year existence. The Committee regrets that legislative delay has
made it necessary to submit this document before final passage of the
National Emergencies Act. Only when that legislation has been
enacted into law will the work of the Committee truly be finished.

We would like to take this opportunity to thank Senators Philip A.
Hart, Claiborne Pell, Adlai E. Stevenson III, Clifford P. Case, James
B. Pearson, and Clifford P. Hansen for the spirit of cooperation and
non-partisanship which has made the work of the Committee so
successful.

We would also like to express our gratitude to the many other people
who have helped the Committee complete its work. In particular, we
wish to thank the following people for their valuable assistance : Lester
S. Jayson, the director of the Congressional Research Service of the
Library of Congress; Joseph E. Ross, head of the American Law
Division of CRS; and especially Raymond Celada of the American
Law Division and his able assistant, Charles V. Dale and Grover S.
Williams; Jack Goldklang of the Office of Legal Counsel, Department
of Justice; Paul Armstrong of the General Accounting Office, and
Linda Lee, research aide. Dr. Harold Relyea of the Library of Con-
gress continually provided valuable assistance in addition to writing
an informative and useful history of American government in times
of emergency.

We wish to commend Staff Directors William G. Miller and Jerry
M. Brady for their leadership and the other staff members for their
diligence in completing the work of the Committee. Over the three-
year period, the staff included : Thomas A. Dine, Audrey H. Hatry,
Martha E. Mecham, Roland B. Moore, III, Patrick M. Norton, Wil-
liam K. Sawyer, Patrick A. Shea, Naldeen McDonald, Yvonne McCoy,
and Gayle D. Fitzpatrick.

Finally, we would like to give credit to the staff members responsible
for this Final Report and the report on emergency preparedness which
is included in the Appendix. We thank William K. Sawyer for writing
these reports, Jerry M. Brady for editing them, and Gayle D. Fitz-
patrick for administrative support.

Frank Church,

Charles McC. Mathias, Jr.,

Cochairmen.

(V)

INTRODUCTION

The Special Committee on National Emergencies and Delegated
Emergency Powers ends its work with an emphatic plea that the
National Emergencies Act, H.R. 3884, be passed as soon as possible.
The legislation, which represents the culmination of three years of
work by the Committee, will both terminate special powers possessed
by the President as a result of existing states of national emergency
and establish procedural guidelines for the handling of future emer-
gencies with provision for regular Congressional review. The bill
should end the disarry that has characterized emergency laws and
procedures in the United States.

The legislation is long overdue. A majority of Americans alive
today have lived their entire lives under emergency rule. Since 1933.
protections and procedures guaranteed by the Constitution have, in
varying degrees, been abridged by Executive directives whose legality
rests on the continued existence of Presidentially proclaimed states of
emergency. For more than forty years, emergency authority intended
for use in crisis situations has been available to the Executive. The
President has had extraordinary powers — powers to seize property
and commodities, seize control of transportation and communications,
organize and control the means of production, assign military forces
abroad, and restrict travel.

This dangerous state of affaire is a direct result of Congress' fail-
ure to establish effective means for the handling of emergencies and
its willingness to defer to Executive branch leadership. In the face
of the wars, emergencies, and crises and determined Presidents of the
past forty years, the Congress, through its own actions has transferred
awesome magnitudes of power to the Executive without ever examin-
ing the cumulative effect of that delegation of responsibility. It has
tolerated and condoned Executive initiatives without fulfilling its own
constitutional responsibilities. It has in important respects permitted
the Executive branch to draft and in large measure to make the law.
This has occurred despite the constitutional responsibility conferred
on Congress by Article I. Section 8 of the Constitution which states
that it is Congress that "makes all Laws. . . ."

Passage of the National Emergencies Act will be a major step
toAvard restoring Congress to its proper legislative role. The legislation
represents significant progress in checking the growth of Executive
power and returning the United States to normal peacetime processes.
The measure is vital in insuring that the United States travels a road
marked by legislative oversight and carefully constructed legal safe-
guards.

History of the Special Committee

Interest in the question of emergencv powers stems from the United
States' experience in the Viet Nam War and the incursion into Cam-

(1)

bodia. The President's ability to commit Americans to warfare with-
out any Congressional declaration of a state of war disturbed many
Senators.

In 1971 Senator Charles McC. Mathias, Jr. of Maryland submitted
Senate Concurrent Resolution 27 to establish a special joint com-
mittee to study the effect of terminating the only emergency known
to be in existence at the time, that declared by President Truman in
1950 during the Korean War. On May 23, 1972, Senator Mathias and
Senator Frank Church of Idaho introduced Senate Resolution 304,
which called for the creation of the Senate Special Committee on the
Termination of the National Emergency. The Senate Foreign Rela-
tions Committee, after hearings and executive comments, reported the
resolution favorable on June 13, 1972. The bill subsequently passed
the Senate, and on September 18, 1972, an equal number of majority
and minority party members were appointed to the newly- formed
Special Committee. Senators Church and Mathias became co-chairmen,
and Senators Hart, Pell, Stevenson, Case, Pearson, and Hansen were
also appointed.

On January 6, 1973, the Special Committee began its work under
the authority of S. Res. 9 and the 93rd Congress. The mandate of the
Committee was :

to conduct a study and investigation with respect to the mat-
' ter of terminating the national emergency proclaimed by the
President of the United States on December 16, 1950, as an- '
nounced in Presidential Proclamation Numbered 2914, dated
the same date.

In conducting its study, the Committee was to :

(1) consult and confer with the President and his advisers;

(2) consider the problems which may arise as the result of
' terminating such national emergency ; and

(3) consider what administrative or legislative actions might
be necessary or desirable as the result of terminating such na-
tional emergency, including consideration of the desirability and
consequences of terminating special legislative powers that were
conferred on the President and other officers, boards, and com-
missions as the result of the President proclaiming a national
emergency.

From the start, the work of the Committee was marked by non-
partisanship and its efforts facilitated by the cooperation of the
Executive branch. The Committee staff met with Attorney General
Kleindienst as early as January 17, 1973, and enlisted the help of the
Department of Justice. A special task force was established in the
White House to look into the question of emergency powers.

Executive cooperation was important because of the rudimentary
state of knowledge of emergency laws and procedures at that time.
The Special Committee knew that the Truman Korean War Emer-
gency was still in existence and that at least 200 special powers had
accrued to the President over the years. The investigators knew that
President Johnson had used emergency powers in January, 1968,
to control American investments abroad in an effort to ease that year's
balance-of- payments crisis, and that President Nixon had invoked
the same authority in February, 1971, to suspend the provisions of the

Davis-Bacon Act. Yet. the Special Committee did not know the full
story.

Committers Findings

The Committee quickly discovered that disorder enveloped the
whole field of emergency statutes and procedures. Xot one but four
emergency proclamations remained in force. In addition to the na-
tional emergency proclaimed by President Truman on December 16,
1950, the following- declarations of emergency remained in force :

the national emergency declared by Franklin Eoosevelt on
March 9, 1933. to cope with the current banking crisis;

the national emergencv declared by Richard Nixon on
March 23. 1970, to deal with the Post Office strike ;

the national emergency declared by Richard Xixon on
August 15, 1971, to implement currency restrictions and to en-
force controls on foreign trade.

The continuation of these states of emergency was significant, since
any declaration of emergency triggers numerous laws which, taken
together, give the President extraordinary power. The following laws
are illustrative :

Statute 10 USC 712 permits the President "during a war
or a declared national emergency" to ''detail members of the
Army. Navy, Air Force, and Marine Corps to assist in mili-
tary matters" in any foreign country.

Under 10 USC 333, the President can use the militia or
armed forces to suppress "conspiracy," if it is likely that "any
part" of the people in a state will be deprived of some consti-
tutional rights, and the state itself refuses to act. Under this
statute, the President conceivably could circumvent Article
IV. Section 4, of the Constitution even before waiting for
state legislatures or state executives to request Federal troops.

Under IS USC 1383. the President has authority to declare
any part or all of the United States military zones. People in
such zones can be jailed for a year for violating any "execu-
tive order of the President." Would these arrests be review-
able in court \ It is not clear. Judicial review of agency ac-
tions is guaranteed in 5 USC 702, but 5 USC 701 excludes ac-
tions taken under declarations of martial law.

A President could make use of Public Law 733, which ex-
presses the determination of the United States to prevent "by
whatever means may be necessary including the use of arms,*'
any "subversive" activities by the government of Cuba.

Under 47 USC 308, the Federal Communications Commis-
sion could, during a national emergency, modify existing
broadcast licenses under terms it might prescribe'.

Under 47 USC 606, the President can amend "as he sees
fit" the rules and regulations of the Federal Communications
Commission and, in particular, can "cause the closing of any
facility or station for wire communications."

If the President finds the nation "threatened by attack,"
he could, under 44 USC 1505, cease to publish his regulations
in the Federal Register if he determines that it is "imprac-

S. Rept. 94-922 2

ticable." This could open the way to promulgation of secret
laws.

Moreover, no recent comprehensive record of statutes effective dur-
ing times of emergency had been compiled. No consistent procedure
was being followed in declaring, administering, and terminating states
of national emergency. The enlarged task that the Committee con-
fronted led to its being redesignated the Special Committee on Na-
tional Emergencies and Delegated Emergency Powers.

Two Tasks for the Committee

The Special Committee worked on two main tasks. The first was to
explore how existing states of national emergency could be terminated
with the least adverse effects. There were three possible approaches:
(a) outright repeal of all emergency statutes, (b) relegating all emer-
gency provisions to a state of dormancy to be used in future emer-
gencies, or (c) maintaining emergency provisions in the United States
Code but for use only in states of emergency declared in accordance
with regular and consistent procedures which would provide for ter-
mination and oversight.

The second task was to explore the possibility of establishing a pro-
cedure for declaring states of national emergency. The procedure
would require accountability for actions taken by the Executive pur-
suant to delegated emergency authorities in order to permit the Con-
gress to effectively exercise its oversight responsibilities.

Hearings

Concurrent with the historical research undertaken by the staff of
the Special Committee, the Library of Congress and distinguished con-
sultants, hearings were held on the history of emergency rule in the
United States and constitutional problems created by such rule.

Professor Robert S. Rankin, Emeritus, of Duke University, Pro-
fessor Cornelius P. Cotter of the University of Wisconsin, and Pro-
fessor J. Malcolm Smith of California State University, all renowned
scholars of the subject of emergency powers, testified in hearings held
by the Special Committee on April 11, 1973.

Professor Adrian S. Fisher, Dean of the Georgetown University
Law Center, and Dr. Gerhard Casper, Professor of Law and Political
Science at the University of Chicago, testified on April 12, 1973. Pro-
fessor Fisher served as an advisor to President Harry S. Truman in
1950 and described to the Committee the circumstances surrounding
Truman's declaration of national emergency in that year. Professor
Casper testified on the constitutional questions raised by Executive
use of emergency powers.

The Committee also heard from officials formerly associated with
the Justice Department and Supreme Court including the late Chief
Justice Earl Warren. Former Attorney General of the United States
and Associate Justice of the U.S. Supreme Court Tom C. Clark, for-
mer Attorney General Nicholas DeB. Katzenbach, and former Attor-
ney General Ramsey Clark testified on July 24, 1973. Later, on Novem-
ber 28, 1973, former Attorney General Elliott Richardson and former
Solicitor General Erwin Griswold presented their views to the Special
Committee.

Throughout its work the Special Committee has had the benefit of
the full cooperation and assistance of the Justice Department, under

four successive Attorneys General — Kleindienst, Richardson, Saxbe,
and Levi — as well as the Department of Defense and the Office of
Management and Budget.
Publications on Emergency Powers

To improve understanding of emergency laws and procedures and
provide the basis for legislation, the Special Committee published a
number of studies, reports, and compilations. The first was a com-
pilation of "Emergency Power Statutes: Provisions of Federal Law
Now in Effect Delegating to the Executive Extraordinary Authority
in Time of National Emergency." The story of how this document
was composed illustrates the size of the task the Committee faced and
the cooperation it received from the Executive branch.

In the past, the only way to compile a catalog useful to Congress
would have required going through every page of the 86 volumes of
the StatuteS-at-Large. Fortunately, the U.S. Code was put into com-
puter tapes by the U.S. Air Force in the so-called LITE system^which
is located at a military facility in the State of Colorado. The Special
Committee devised several programs for computer searches based on
a wide spectrum of key words and phrases contained in typical provi-
sions of law which delegate extraordinary powers. Examples of some
trigger words are "national emergency," "war," "national defense,"
"invasion," "insurrection," et cetera.

These programs resulted in several thousand citations. At this point,
the Special Committee and Library of Congress staffs went through
the printouts, separating out those provisions of the U.S. Code most
relevant to war or national emergency, and weeding out those provi-
sions of a trivial or extremely remote nature. Two separate teams
worked on the computer printouts and the results were put together in
a third basic list of U.S. Code citations.

To determine legislative intent, the U.S. Code citations were then
hand checked against the Statutes-at-Large, the Reports of Standing
Committees of the L T .S. Senate and House of Representatives and,
where applicable. Reports of Senate and House Conferences.

In addition, the laws passed since the publishing of the 1970 Code
were checked and relevant citations were added to the master list. The
compilation was then checked against existing official catalogs: that
of the Department of Defense. "Digest of War and Emergency Legis-
lation Affecting the Department of Defense"; that of the Office of
Emergencv Planning. "Guide to the Emergency Powers Conferred by
Laws in Effect on January 1, 1969"; and, the 1962 House Judiciary
Committee synopsis of emergency powers, "Provisions of Federal
Law in Effect in Time of National Emergency." The result was a com-
pilation and commentary on 470 special statutes invokable by the
President during a time of declared national emergency.

Once the Special Committee had completed its compilation of emer-
gency statutes, the staff, assisted by the Office of Management and
Budget, solicited evaluation of the existing statutes from Executive
departments, agencies, nnd office- and from Standing Committees of
the Senate. "Executive Replies: Summaries of the Executive Branch
and Committee Recommendations" was then issued as a committee
print in three parts.

Other Publications

The Special Committee also composed a study of "Executive Orders
in Time of War and National Emergency." This compilation brought
together as complete a collection as possible of Executive Orders and
Proclamations issued pursuant to states of war and national emer-
gency. The collection was based on an examination of Proclamations
and Executive Orders found at the Library of Congress and the
Federal Register. The report documents the lack of legal accountabil-
ity in many important areas of public policy for orders given by the
President.

In addition, "A Brief History of Emergency Powers in the United
States" was issued as a commitee print. When the Special Committee
began its work, there was no basic study outlining the use of emer-
gency powers in the United States from the time of the Philadelphia
Constitutional Convention to the present. To fill the gap, the Com-
mittee asked Dr. Harold Relyea of the Library of Congress to write
a chronological history of the American government in times of
crisis. His study highlights the great crises of American history
and the manner in which the three branches of the Federal Govern-
ment have met particular emergency situations. Especially significant
are the experiences and legacies of Shay's Rebellion, the Civil War,
labor strikes of the late 19th Century, and both World Wars.

Court Guidance

Throughout its work the Special Committee has paid close attention
to court decisions. The Committee was particularly guided by the
famous Youngstown Steel and Tube Company v. Sawyer decision,
in which the Supreme Court failed to uphold an attempt by President
Truman to seize control of the striking steel industry. Speaking for
the majority, Justice Black held that "the President's power, if any,
to issue the order must stem from an Act of Congress or from the
Constitution itself." He characterized President Truman's action as
-an unconstitutional arrogation of "law-making power" by the
.Executive.

Justice Jackson's widely quoted and praised concurring opinion
stressed that our system of government is a "balanced power struc-
ture" and pointed out that Executive power to act is a variable
-depending upon the collective will of Congress for its authority.
-Justice Jackson listed three situations which determine the extent of
i the Presidents power :

1. When the President acts pursuant to an express or
implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right
plus all that Congress can delegate. .

2. When the President acts in absence of either a Congres-
sional grant or denial of authority, he can only rely upon his
nowii independent powers.

3. When the President takes measures incompatible with the
-expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own constitu-
tional powers minus any constitutional powers of Congress. J
over the matter. \

Justice Jackson continued :

The appeal, however, that we declare the existence of in-
herent powers ex necessitate to meet an emergency asks us to
do what many think would be wise, although it is something
the forefathers omitted. They knew what emergencies were,
knew the pressures they engenered for authoritative action,
knew, too, how they afford a ready pretext for usurpation.
We may also suspect that they suspected that emergency
powers would tend to kindle emergencies. Aside from suspen-
sion of the privilege of the writ of habeas corpus in time of
rebellion or invasion, when the public safety may require it,
they made no express provision for exercise of extraordinary
authority because of a crisis. I do not think we rightfully
may so amend their work, and, if we could, I am not convinced
it would be wise to do so, although many modern nations
have forthrightly recognized that war and economic crisis
may upset the normal balance between liberty and authoritj T .
Their experience with emergency powers may not be irrele-
vant to the argument here that we should say that the Exe-
cutive, of his own volition, can invest himself with undefined
emergency powers.

After recalling the experience of Germany, where the Constitution
had permitted the President to suspend individual rights, and Great
Britain and France, where the parliaments had maintained strict
control over emergency powers, Justice Jackson concluded:

This contemporary foreign experience may be inconclusive
as to the wisdom of lodging emergency powers somewhere in
a modern government. But it suggests that emergency
powers are consistent with free government only when their
control is lodged elsewhere than in the Executive who exer-
cises them. That is the safeguard that would be nullified by
our adoption of the "inherent powers" formula. Nothing in
my experience convinces me that such risks are warranted by
any real necessity, although such powers would, of course, be
an Executive convenience.

In the practical working of our Government we already
have evolved a technique within the framework of the Con-
stitution by which normal Executive powers may be con-
siderably expanded to. meet an emergency. Congress may
and has granted extraordinary authorities which lie dor-
mant in normal times but may be called into play by the
Executive in war or upon proclamation of a national emer-
gency. In 1939, upon Congressional request, the Attorney
General listed ninety-nine such separate statutory grants by
Congress of emergency or wartime Executive powers. They
were invoked from time to time as need appeared. Under this
procedure we retain government by law — special, temporary
law, perhaps, but law nonetheless. The public may know the
extent and limitations of the powers that can be asserted,
and persons affected may be informed from the statute of
their rights and duties.

66-474 O - 76

In view of the case, expedition and safety with which
Congress can grant and has granted large emergency
powers, certainly ample to embrace this crisis, I am quite un-
impressed with the argument that Ave should affirm posses-
sion of them without statute. Such power either has no be-
ginning or it has no end. I,f it exists, it need submit to no
legal restraint. I am not alarmed that it would plunge us
straightway into dictatorship, but it is at least a step in that
wrong direction.

The Special Committee accepted Jackson's opinion as a basic guide-
line for its work. The continuing importance of the opinion is illus-
trated by the reference made to it in counsel given to the Special
Committee by the late Chief Justice Earl Warren just prior to his
death. Senator Mathias reported the details of that conversation to
the Senate on August 22, 1974:

Chief Justice Warren said that while the Constitution pro-
vides that only Congress can make the law, the legislature
had the obligation through enacting statutes to provide firm
policy guidelines for the Executive branch. The former
Chief Justice agreed with Justice Jackson's view that where
there are statutory guidelines, a President is obliged to fol-
low the precepts contained in the laws passed by the Con-
gress. Inherent powers problems arise and the other branches
act, he said, largely when Congress fails to act definitely,
when it fails to make needed laws and when there is a neces-
sity for legislative action and Congress fails to meet the
challenge.

Legislative History

Upon the basis of all its findings, the Special Committee decided
to write legislation which would both effectively end the four states of
national emergency found to be in force and establish procedures for
the handling of any future national emergency. The resulting bill,
the National Emergenceis Act, has received broad bipartisan support
and elicited a rare degree of cooperation between the Executive and
Legislative branches of government .

A quick review of the legislative history is instructive. The Com-
mittee first submitted the National Emergencies Act to the Senate
on August 22, 1974. The bill, S. 3957, was sponsored by Senators
Church, Mathias, Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin,
Chiles, Williams, Muskie, Javits, Ribicoff, and Roth. The legislation
provided for :

CL Termination of powers and authorities available to the
Executive as a result of the states of national emergency in force.

2. Congressional review of future national emergencies.

3. Congressional oversight of and Executive accountability for
actions taken in the exercise of emergency powers.

4. Repeal of obsolete emergency powers statutes.

The Senate Committee on Government Operations, to which the bill
was referred, reported it without amendment on September 30, 1974
(S. Rept. 93-1193). On October 7 on the floor of the Senate, Senator
Mathias offered amendments incorporating compromises agreed to by

the Government Operations Committee and the Administration. The
amendments provided for :

1. Extension of the termination date for existing emergencies
from nine to twelve months from enactment ;

2. A semi-annual review and decision by Congress on whether
to end an emergency, rather than automatic termination of states
of emergency ;

3. Reduction of the number of statutes to be repealed;

4. Exemption of six statutes considered essential by the Execu-
tive branch and provision for their review by appropriate Con-
gressional committees ;

5. Requirements for an accounting of expenditures incurred
in the exercise of national emergency statutes.

The amended legislation passed the Senate without dissent on Oc-
tober 7, 1974.

Senate bill, S. 3957. then went to the House of Representatives, but
the House Judiciary Committee, to which the legislation was referred,
was unable to act on the bill in 1974. Representative Peter Rodino, the
Committee' Chairman, had intended to hold early hearings on the
legislation; however, the impeachment inquiry and confirmation of
Vice President Rockefeller prevented consideration during the 93rd
Congress, and the bill consequently died.

Early in the 94th Congress, on February 27, 1975, Chairman Rodino
introduced H.R. 3884 and on March 6, 1975, Senator Mathias intro-
duced S. 977. The bills were identical and, with the exception of two
minor technical amendments, the same as the measure already passed
by the Senate.

The House Judiciary Subcommittee on Administrative Law and
Governmental Relations, chaired by Representative Walter Flowers,
then held hearings on H.R. 3884 on March 6, 13, 19 and April 9,
1975. Witnesses included Senator Mathias, Senator Church, Repre-
sentative Rodino, and representatives of Executive departments and
agencies.

On May 21, 1975, the Judiciary Committee reported H.R. 3884
with amendments (H. Rept. 94-238). Most of the changes clarified
and corrected sections of the bill. One amendment advanced from one
year to two years the effective date for the termination of the existing
emergency powers. The two-year delay provided time for all Execu-
tive agencies and departments dependent on emergency statutes to
seek permanent legislation. Another revision gave the Executive addi-
tional time to account for expenditures incurred during the exercise
of emergency powers. The Committee felt that the original schedule
did not provide sufficient time for the reporting of expenditures. The
Committee also increased the number of statutes which would be ex-
empt from the force of the legislation.

H.R. 3884, as amended by the House Judiciary Committee, passed
the House on September 4, 1975. On the floor, the House accepted an
amendment by Representative Matsunaga to provide for automatic
termination of an emergency if the Executive fails to publicly renew
the emergency Final passage came easily. Only five Representatives
voted against the bill, while three hundred and eighty-eight cast their
ballots in favor of it.

In the Senate, H.R. 3884 was referred to the Government Opera-
tions Committee. Senator Church and Senator Mathias testified on
behalf of the legislation on February 25, 1976, but the full Committee
has been unable to markup the bill yet, due to the press of other busi-
ness, mainly proposed reforms concerning the Central Intelligence
Agency.

The Special Committee believes that there is no reason to delay
passage any longer. Both houses of Congress have passed the biil
overwhelmingly ; the only problem is that the Senate acted in the 93rd
Congress and the House in the 94th. Seldom has such a significant
piece of legislation received such universal support. The time for the
National Emergencies Act to become the law of the land is long
overdue.

Work Remaining

Passage of the National Emergencies Act is tlje top priority, but

other issues will also deserve attention in the future.

Issues related to the National Emergencies Act

1. Committee review of exempted statutes — Under Title V of the
National Emergencies Act certain statutes are exempted from the
force of the legislation pending further review by Standing Commit-
tees in the House and Senate. The Special Committee initially con-
templated no such exemptions, but it became apparent that because
of the prolongation of emergency . rule in the United States, many
governmental departments had come to depend on these laws for their
day-to-day operations. Abrupt termination of such provisions
threatened to disrupt activities deemed to be essential to the func-
tioning of the government. To avoid such disruption and to allow
careful consideration of the statutes in question and enactment of
permanent law where appropriate, the Committee agreed to exempt
these provisions from the effect of the legislation.

Close scrutiny will be required to determine whether these statutes
should be continued in force or how they should be amended. Serious
questions exist about future reliance on laws which were enacted to
meet emergency situations and which have been used in ways not
envisioned in the legislative histories of the statutes.

2. Careful review of requests for permanent law — The National
Emergencies Act provides for a two-year delay in the termination of
emergency powers currently possessed by the President. The delay is
designed to give Executive agencies time to seek permanent legislation
where necessary. Congressional committees should remain vigilant
during this period and conduct a rigorous examination in those in-
stances where permanent law is sought in place of emergency law (i.e.,
law operative only under a condition of proclaimed national emer-
gency). Care must be taken to preserve the distinction between perma-
nent law and emergency law and to insure that powers which are
properly restricted to periods of national emergency do not become
available in normal times. Committees should examine Executive
justifications closely and not allow changes solely for reasons of
convenience.

3. Potential efforts to thwart intent of law— Congress must be wary
of potential efforts to bypass or circumvent the intent of the new legis-
lation. It should be clearly understood that Congress will not accept

any claim that an emergency is so severe that the President can act
without the Congressional review required under this legislation. Con-
gress must be prepared for possible efforts to thwart the intent of the
bill by dropping the wording "national emergency" and introducing
different terminology. Committees must insure that all emergency
legislation, however denominated, has the same accountability and
reporting requirements and termination procedures. No claim can in
the future be advanced that a particular type or class of emergency
can arise in which the President's powers are not subject to Congres-
sional review.

Xeed for an Investigation of Emergency Preparedness Efforts Con-
ducted by the Executive Branch

The Special Committee recommends that emergency preparedness
efforts in the United States be investigated to determine the advan-
tages and disadvantages of the administrative structure established
in 1973.

Under Reorganization Plan Number 1 of 1973, the Office of Emer-
gency Preparedness was dismantled and a more decentralized admin-
istrative apparatus set up. The Federal Preparedness Agenc}< within
General Services Administration assumed responsibility for coordi-
nation and planning; the Federal Disaster Assistance Administration
within Housing and ITrban Development became the central agency in
charge of natural disasters; and the Department of the Treasury
assimilated those functions regarding investigations of imports which
might threaten national security.

The Committee believes that now — three years after that reorgani-
zation — the time has arrived to assess its effects and to evaluate the
operation of the new structure with particular attention to emergency
preparedness, coordination, planning, and civil liberties questions. A
brief exploration by the staff of this Committee raised serious ques-
tions, and further investigation seems wise. 1

Need for Congressional Preparations for an Emergency and Continual
Review of Emergency Law

The Special Committee believes that Congress must take steps to
insure that it will be able to act quickly and effectively in time of
emergency. Action must be taken now if Congress is to play an active,
responsible role in any future emergency.

In a letter to Senators Church and Mathias on May 14, 1974. Major-
ity Leader Mansfield described emergency preparations undertaken by
the leadership:

Under the terms of the resolution, adopted December 22,
1973. the Majority Leaders of each House, or the Minority
Leaders of each House, or the Speaker and President Pro
Tempore have the authority to call the Congress back into
session within 48 hours. It is my intention to insist upon this
provision for any recess or adjournment of the Senate of a
duration in excess of three days.

Although a more efficient system could be established, the
leadership of the Senate does have the capacity now to contact

1 See "Staff Report on Emergency Preparedness" in the Appendix.
—Sr-Rept. 94-922 3

each Senator within 24 hours. I believe that an enactment
might be necessary to assure the proper priority by the various
Executive departments of requests for air transportation
when the above procedure is invoked.

The Committee believes that more thought should be given to emer-
gency preparedness. Congress must anticipate diverse scenarios and
insure its ability both to survive a crisis and to act effectively in its
aftermath. There must be an intelligent definition of the role Congress
should assume in emergency preparedness efforts and other emergency
activities.

It may be wise to appoint personnel or to establish an adminis-
trative mechanism to assume responsibility for coordinating emer-
gency preparations. A new subcommittee, which need not be large,
could be set up in the Government Operations Committee, the Joint
Committee on Congressional Operations, or elsewhere. The subcom-
mittee could, on an ongoing basis, review Congressional activities,
oversee Executive efforts, and coordinate the work of the two branches
of government. It could also work out administrative details of the
National Emergencies Act and insure that its provisions are followed
in time of emergency.

If the Senate were reluctant to set up a permanent body to monitor
policy developments, it could establish, on a reserve basis, a panel
which would come into existence as soon as a national emergency has
been proclaimed. The unit might be a Special or Select Committee, or
a subcommittee of the Government Operations Committee. The panel
would provide a coordinating center to bring concentrated attention
to the emergency.

Regardless of whether any new Congressional structures are es-
tablished, regular examination of the canon of emergency statutes,
Executive orders and related administrative rules, regulations and
instruments — operative, dormant, limited — is imperative to keep the
Congress apprised of developments and advised as to corrective actions
which should be undertaken. The potential threat posed by national
emergency law to the political well-being of a democracy makes essen-
tial regular examination of policy developments by a Senate commit-
tee. Since the Government Operations Committee has had responsi-
bility for the National Emergencies Act in the Senate, it seems appro-
priate that this Committee conduct this review.

Ending Open-Ended Grants of Authority to the Executive

The Special Committee is particularly concerned that Congress end
its dangerous practice of extending open-ended authority to the Presi-
dent. Future legislation should include a terminal date for authorities
granted to the Executive and provide for Congressional review.

Past experience presents ample reason for concern about the lack
of controls on powers extended to the President. Too often the failure
to include a terminal date or to require Congressional review has led
to a situation in which the use of an Act belies the purposes for which
it was enacted. Several examples illustrate this pattern.

During the Civil War, Congress passed the Feed and Forage Act
of 18G1 to enable the cavalry in the American West to buv feed for
their horses when Congress was out of session. Later, Presidents

invoked the authority of this Act to spend millions of dollars without
benefit of Congressional action. The law was used to finance American
marines in Lebanon in 1908, to support the Berlin mobilization in
1962, and to maintain troops in Southeast Asia.

In 1933, Congress passed the Emergency Banking Act, which was
based on Section 5(b) of the Trading with the Enemy Act of 1917.
The legislation gave President Roosevelt the power to control major
aspects of the economy — an authority which had formerly been
reserved to the Congress. Since then, the Executive branch has used
this authority constantly to regulate many aspects of foreign trade
and international monetary controls. For instance, when President
Johnson wanted to control the foreign investments of U.S. companies
in 1968 to alleviate the balance of payments crisis, he issued an
Executive Order based on this authority. 2

In 1950, Congress passed the Defense Production Act giving the
President wide-ranging powers to control the production of materials
needed for national defense efforts connected with the Korean War.
Sixteen years later, the Act was used to fill a Department of Defense
order for 3 million tropical uniforms for use in Vietnam. In the fourth
quarter of 1966, the President also relied on the law to require steel.
copper, and aluminum producers to set aside part of their output for
defense purposes.

Most troubling about these open-ended grants of power is that they
have often been made in response to the exigencies of war and other
emergency conditions, frequently with the most perfunctory committee
review and with virtually no consideration of a law's effect on civil
liberties or the delicate structure of divided powers in the U.S. govern-
ment. The passage of broad economic measures in 1933 provides an
extreme example. There was a total of only eight hours of debate in
both Houses. There were no committee reports: indeed, only one copy
of the bill was available on the floor. The same pattern of hasty and
inadequate consideration was repeated during World War II, the
Korean War. and the 1964 debate on the Tonkin Gulf resolution.

Lack of Congressional control is particularly characteristic of
emergency statutes, most of which have no provision for Congressional
oversight or termination. There are two reasons for this. First, few,
if any. foresaw that the temporary states of emergency declared in
1933, 1939, 1941, 1950. 1970, and 1971 would remain in effect for so
long (the 1939 and 1941 emergencies were terminated in 1952). Second,
the various administrations which drafted these laws were under-
standably not concerned about providing for Congressional review,
oversight, or termination of delegated powers, which gave the
President wide-ranging authority.

In any case, the time has come to reverse the pernicious habits of
the past. It is imperative that termination dates, reporting require-
ments, and accountability procedures be included in future legisla-
tion. Those who would argue for greater latitude for the Executive
should remember the experience of the British who fought all through
the Second World War on delegation of power extended to the Prime
Minister for no longer than thirty days at a time.

2 The Special Committee wishes to commend the House International Relations Sub-
committee on International Trade and Commerce, which started an investigation of
Section 5(b) of the Trading With the Enemy Act in the fall of 1975.

Investigating and Instituting Stricter Controls Over Delegated
Powers

Concurrent with efforts to include terminal dates and provision for
Congressional review in future legislation, there must be a reexamina-
tion of the whole isue of Congressional delegations of power to the
Executive.

Fortunately, the Senate Judiciary Subcommittee on Separation of
Powers has already initiated an investigation in this area. That sub-
committee is examining the question of whether the delegation doc-
trine retains any vitality. The study will focus on the pattern of
abdication of responsibility by the Congress through the use of broad
unstructured mandates and the excessive use by the Executive of
guidelines and Executive orders either to implement policies not con-
curred in by Congress or to aggrandize narrowly delegated power.

The Special Committee wishes to emphasize the importance of this
inquiry. The Committee's examination of delegated emergency powers
revealed the extent of power the Legislative branch has delegated to
the Executive. Emergency powers statutes embrace every aspect of
xlmrican life, and it only takes a quick glance at certain statutes to
underscore the vast transfer of power to the Executive. For instance,
Section 712 of Title 10 of the United States Code, entitled "Foreign
Governments : Detail to Assist," reads :

(a) Upon the application of a country concerned, the Presi-
dent, whenever he considers it in the public interest, may detail
members of the Army, Navy, Air Force, and Marine Corps to
assist in military matters —

(1) any republic in North America, Central America, or
South America ;

(2) the Republic of Cuba, Haiti, or Santo Domingo; and

(3) during a war or a declared national emergency, any
other country that he considers it advisable to assist in the
interest of national defense.

(b) Subject to the prior approval of the Secretary of the mili-
tary department concerned, a member detailed under this section
may accept any office from the country to which he is detailed.
He is entitled to credit for all service while so detailed, as if serv-
ing with the armed forces of the United States. Arrangements
may be made by the President, with countries to which such mem-
bers are detailed to perform functions under this section, for
reimbursement to the United States or other sharing of the cost
of performing such functions.

The Defense Department, in answer to inquiries by the Special
Committee concerning this provision, has stated that it has only been
used with regard to Latin America, Liberia and Iran, and interprets
its applicability as being limited to noncombatant advisers. The lan-
guage of Section 712, however, is wide open to other interpretations.

The transfer of power of which this statute is illustrative is the re-
sult of Congressional mandate, not Executive usurpation. Over the
past four decades the Congress has been content to give the Executive
increasing latitude to act without reference to Congress. In a Yale
Review article, entitled "The Routinization of Crisis Government,"
Donald L. Robinson underscores the trend :

A review of the development of [emergency] statutes re-
veals the deterioration of legislative form during the twenti-

eth century. They vary most significantly in the guidelines
they lay down for administrators, and it is here that a trend
is most apparent, Some, like the statute giving the Presi-
dent power to call the National Guard into Federal service,
have always been couched in language giving the President
broad discretion . . . statutes dealing with the military have
always tended to be broad in their delegations to the Presi-
dent.

When emergency powers touch upon domestic industry,
however, Congress has traditionally tended to show greater
care in the delegation of powers to the Executive branch. In
1916, for example, Congress passed an act providing for the
mobilization of industries capable of producing war material.
If such industries refused to comply with government orders
"in time of war or when war is imminent," the President was
authorized to take possession and, through an appointed
Board of Mobilization, to operate them. Firms were to be
given "fair and just" compensation for their products or for
the "rental'' of their facilities. Despite pressure from the Tru-
man Administration, Congress steadfastly refused to broaden
the act by authorizing seizures in peacetime emergencies or
even in the event of undeclared wars like the Korean. But, in
1956, this statute was repealed, and replaced by one much
briefer, stripped of all qualifications as to the kind of enter-
prise subject to seizure and the kinds of compliance that would
forestall seizure. Under present law, when the President
deems war imminent, he "may take possession of any plant''
which refuses to "manufacture the kind, quantity, or quality
of arms or ammunition . . . ordered by the Secretary [of the
Army] ; or ... to furnish them at a reasonable price as deter-
mined by the Secretary.''

In the case of labor regulations, an even more marked trend
toward legislative permissiveness is apparent. In 1917, Con-
gress passed an act providing for the suspension of the eight-
hour day on contract work for the government during de-
clared emergencies. In 1962, the chapter dealing with "hours
of labor on public works" was completely revised. No longer
do the powers of the Secretary of Labor to suspend the pro-
visions of the law depend upon the existence of a declared
emergency. Instead, he is given discretion to permit varia-
tions and* exemptions "to and from any or all provisions"
of the act, if he finds it "necessary and proper in the public
interest to prevent injustice or undue hardship or to avoid .
serious impairment of the conduct of Government business."
The report of the Senate Committee on Labor and Public
Welfare, which urged the passage of this revised "work stand-
ards" legislation, fails even to mention the change cited here.

The Special Committee believes that it is time to reverse this trend.
In the future, when Congress delegates power to the Executive, it
should be more specific in defining the conditions in which the author-
ity may be used. Beyond that, the challenge is to devise means by
which Congress can monitor the exercise of delegated powers and con-
trol those actions deemed to be unnecessary or undesirable. Serious
consideration should be given to legislation which would give Con-

gress some type of veto over Executive branch rules and regulations
judged to be inconsistent with the legislative intent of the authorizing
statute. The law might also cover Executive directives, rules, and reg-
ulations which only come into effect during a condition of national
emergency. These instruments, though effective only at some future
time, should be subject to Congressional scrutiny prior to issuance or
activation so that, when they are needed, they will truly reflect the in-
tent of the Legislative branch and will not require adjustment in the
midst of a crisis.

Improving the Accountability of Executive Decisionmaking

There must also be an effort to increase Executive accountability
by regularizing the procedures surrounding the issuance of Executive
orders.

The Special Committee's examination of "Executive Orders in
Times of War and National Emergency'' underscored the chaotic and
secretive conditions that envelop Executive decisionmaking. The Com-
mittee found considerable confusion in procedure, a decided absence
of a comprehensive means for public accountability, and an uncertain
basis for the determination of legal authority on which Executive di-
rectives may be issued or challenged.

Title o of the Code of Federal Regulations indicates that in issuing
decisions and commands, Presidents have used such diverse forms as
letters, memorandums, directives, notice, reorganization plans, admin-
istrative designation, and military orders. The decision whether to
publish an Executive decision is clearly a result of the President's own
discretion rather than any prescription of law. In recent years, the
National Security Action Memorandums of Presidents Kennedy and
Johnson and the National Security Action Directives of President
Nixon represent a new method for promulgating decisions, in areas of
the gravest importance. Such decisions are not specifically required by
law to be published in any register, even in a classified form; none
have prescribed formats or procedures; none of these vital Executive
decisions are revealed to Congress or the public except under irregular
arbitrary or accidental circumstances. For instance, the 1969-1970
secret bombing of Cambodia has recently come before Congressional
and public notice. The public record reveals very little about how the
commands for such far reaching actions were issued. What is most
disturbing is lack of access to any authoritative records in these mat-
ters. In short, there is no formal accountability for the most cru-
cial Executive decisions affecting the lives of citizens and the freedom
of individuals and institutions.

The problem is exacerbated by the classification of sensitive or im-
portant Executive decisions, classification which in most cases pre-
vents even Congress from having access to these documents. While
no one would wish to prevent sensitive documents from being classi-
fied for reasonable cause, the absolute discretion given to the Execu-
tive in this area has led to abuse. It has permitted and encouraged
inclusion in this category of many documents in no way connected
with essential national security. Moreover, not only are their contents
kept secret, but even the extent of such documents is unascertainable.
On the basis of the handling of past Presidential papers, many of
these documents will, of course, in one manner or another, eventually
bo declassified, but many have been withheld by Executive discretion.

The legal record of Executive decisionmaking has thus continued
to be closed from the light of public or Congressional scrutiny
through the use of classified procedures which withhold necessary
documents from Congress, by failure to establish substantive criteria
for publication and by bypassing existing standards. As a result, the
legality of a substantial area of operations of the Government has
in large measure been immune from any oversight or scrutiny by
Congress. And the situation is growing worse. The number of formal
Executive Orders and Proclamations has, in recent years, declined
from many hundreds to about 70 annually. Since it is certain that
as the United States has grown in size and power the Executive has
issued more and more decisions, many of which are of the greatest
importance, it can only be surmised that such commands continue to
be issued in irregular form and in ways hidden from Congress and
the people. As the role of the Executive in Government continues to
expand, this must be cause for concern.

Again, the complacency of the Congress can be cited as the reason
for this disorderly state of affairs. Congress has not specified sub-
stantive standards for the recording of Presidential directives. In
addition, Congress has not yet enacted laws to prevent the Execu-
tive branch from abusing its power to classify documents where its
purpose is to withhold information from Congress and the public.

Improving the accountability of Executive decisionmaking must
be a matter of the highest priority. One task — that of codification —
lias already been begun by the Federal Register. That organization
has embarked upon a codification of all published Executive orders
issued between 1961 and 1075. This codification, which is expected to
be finished by the summer of 1976. will represent the first definitive
compilation of published Executive directives. In the past the exact
legal status of Executive orders has been virtually impossible to
ascertain. While many Executive orders have specified which orders
they were modifying or superseding, this practice has by no means
been uniform.

The next step would seem to be amendment of the Federal Register
Act of 1935, which provides the present statutory guidelines for the
issuance of Executive decisions and orders. That Act is supplemented
by a series of Executive orders by which the Executive prescribes for
itself additional procedures to be observed. Both the statutory and
the self-imposed regulations, however, fail to diminish significantly
the fundamental arbitrariness of the system, and the Executive's own
procedures appear to be followed only insofar as it is convenient to the
Executive's pur]x>se at the time.

The Federal Register Act (44 U.S.C. 1505) provides for the pub-
lication of:

1. Presidential Proclamations and Executive Orders, except
those not having general applicability and legal effect or effective
only against Federal Agencies or persons in their capacity as
officers, agents or employees thereof ;

2. Documents or classes of documents that the President may
determine from time to time have general applicability and legal
effect ; and

3. Documents or classes of documents that may be required
so to be published by Act of Congress.

The categories enumerated herein are not all-inclusive. First of
all, there is the problem of terminology. If a document is not specifi-
cally designated as an "Executive Order" or "Presidential Proclama-
tion," the decision of whether or not it will be published as a part of
the public record is left to the discretion of the President and his
advisers. If he wishes a document to have "general applicability an
legal effect," he will presumably have it published. If, however, the
order is directed only to an official or an agency and does not pur-
port to regulate the conduct of private citizens, there is no legal
necessity for its publication. Most Executive directives fall into this
category. Although most Executive directives pertain to exclusively
internal bureaucratic operations, many others have great consequences
for the Government, the Nation, and individuals as well. One need
cite only the decisionmaking which governed the war in Indochina
to illustrate the point most vividly. Although clause 3 of 44 U.S.C.
1505 permits Congress to designate classes of documents for publica-
tion. Congress has never addressed itself directly to this question in
the broad sense here considered.

Amendment could be made to insure the publication of all signifi-
cant Executive directives, however denominated, in the Federal
Register. At the same time some thought should be given to establish-
ing a system whereby classified rules and orders, by whatever name
called, would be registered.

Until Congress grapples with these problems directly, it will be
confronted with a continuing veil of secrecy and will be unable to
conduct effective oversight of the Executive branch.

Conclusion

While much work remains, none of it is more important than pas-
sage of the National Emergencies Act. Right now, hundreds of emer-
gency statutes confer enough authority on the President to rule the
country without reference to normal constitutional process. Revela-
tions of how power has been abused by high government officials must
give rise to concern about the potential exercise, unchecked by the
Congress or the American people, of this extraordinary power. The
National Emergencies Act would end this threat and insure that the
powers now in the hands of the Executive will be utilized only in time
of genuine emergency and then only under safeguards providing for
Congressional review.

The Special Committee believes that it has provided the nation with
an effective, workable method for dealing with future emergencies in
accord with constitutional processes. The legislation establishes stat-
utory guidelines for the declaration, administration, and termination
of national emergencies. At the minimum, it provides procedure and
due process for the exercise of emergency authority.

The bill rests on the Committee's conviction that both the Executive
and Legislative branches have vital roles to play. The Constitution
makes no provision for suspending the distribution of power in the
United States Government in time of emergency. And it would be
wrong to argue that the framers did not anticipate crises. As Justice
Jackson observed, "they knew what emergencies were, knew the pres-
sures they engender for authoritative action, knew, too, how they

afford a ready pretext for usurpation." Constitutional scholar Gerhard
Casper has commented :

the refusal to arrange for institutional changes during emer-
gencies expresses the confidence of the Founding Fathers
that the ordinary institutions were so designed as to be capa-
ble of coping with extraordinary events. 3

The Committee, consequently, cannot accept any doctrine which
holds that a nation in extremis must submit to the will of a single in-
dividual. Such is the doctrine which has carried India to its present
state, where the writ of habeas corpus is no longer recognized. Our
forefathers — George Washington, James Madison, and others — cau-
tioned, repeatedly, that one branch of government must not be allowed
to usurp the powers of another. Thomas Jefferson knew that "the way
to have a good and safe government, is not to trust it all to one, but to
divide it among the many." In answer to his own question, "What has
destroyed liberty and rights of man in every government which has
ever existed under the sun?" he replied, "the generalizing and concen-
trating of all cares and powers into one bod} 7 ." 4 Xo doubt we can en-
vision circumstances where greater authority must be lodged in the
Executive, but the Executive cannot be allowed to arrogate those
powers to itself without recourse to the Legislative branch.

The Special Committee can only conclude by reemphasizing that
emergency laws and procedures in the United States have been
neglected for too long, and that Congress must pass the National
Emergencies Act to end a potentially dangerous situation. To fail to
act is to invite abuse. Surely now, after the Vietnam War, the bombing
of Cambodia, the Watergate abuses, and the violation of the rights of
Americans by the intelligence agencies, Congress is too wise to do that.

3 Gerhard Casper, Statement, U.S. Congress, Senate, Special Committee on the Termi-
nation of the National Emergency, "Constitutional Questions Concerning Emergency
Powers, Hearings," April 12, 1973. 93rd Congress, 1st session, p. 77.

* Thomas Jefferson letter to Joseph C Cabell, 1816.

* SrRept. 9^822 ( 1

52
APPENDIXES

Publications of Special Committee ox National Emergencies
and Delegated Emergency Powers

reports

A Brief History of Emergency Powers in the United States: U.S.
Senate, Committee Print, 93d Congress, 2d Session, July, 1974.
U.S. Government Printing Office, Washington, D.C. 140 pp.

Emergency Powers Statutes : Provisions of Federal Law Now in Effect
Delegating to the Executive Extraordinary Authority in Time of
National Emergency : U.S. Senate, Senate Report 93-549, 93d Con-
gress, 1st Session, November 19, 1973. U.S. Government Printing
Office, Washington, D.C. 607 pp.

Summary of Emergency Power Statutes: U.S. Senate, Committee
Print, 93d Congress, 2d Session, October, 1973. U.S. Government
Printing Office, Washington, D.C. 74 pp.

Executive Orders in Times of War and National Emergency: U.S.
Senate, Senate Report 93-1280, 93d Congress, 2d Session, October 16.
1974. U.S. Government Printing Office, Washington, D.C. 283 pp.

Summary of Executive Orders in Times of War and National Emer-
gency: U.S. Senate, Committee Print, 93d Congress, 2d Session,.
August, 1974. U.S. Government Printing Office, Washington, D.C.
69 pp.

EXECUTIVE REPLIES

Part 1 — Evaluation of Emergency Powers Statutes. U.S. Senate,
Committee Print, 93d Congress, 2d Session. November, 1974. U.S.
Government Printing Office, Washington, D.C. 126 pp.

Part 2 — Summaries of the Executive Branch and Committee Recom-
mendations. U.S. Senate, Committee Print, 93d Congress, 2d Ses'sion T
November, 1974. U.S. Government Printing Office, Washington,
D.C. 322 pp.

Part 3— Statutes at Large. U.S. Senate, Committee Print, 93d Con-
gress, 2d Session, November, 1974. U.S. Government Printing Office,.
Washington, D.C. 68 pp.

HEARINGS

Part 1 — Constitutional Questions Concerning Emergency Powers.
U.S. Senate, 93d Congress, 1st Session. April 11, 12, 1973. U.S.
Government Printing Office, Washington, D.C. 496 pp.

Part 2 — Views of Former Attorneys General. U.S. Senate. 93d Con-
gress, 2d Session, July 24, 1973. U.S. Government Printing Office,
Washington, D.C. 225 pp.

(21)

Part 3 — Constitutional Questions Concerning Emergency Powers.
U.S. Senate, 93d Congress, 1st Session, November 28, 1973. U.S.
Government Printing Office, Washington, D.C. 196 pp.

Errata Section

The Special Committee would like to note that there is an error in
the information on page 96 of Senate Report Number 93-1280,
''Executive Orders in Times of War and National Emergency." The
original notation reads that ". . . Executive Order 11798 . . . revoked
both Executive Order 11796 and Executive Order 11533." According
to Presidential Documents Division, Office of the Federal Register.
Executive Order 11798 revoked Executive Order 11796, but continued
in "full force and effect" Executive Order 11533. The full text of
Executive Order 11798 reads as follows :

REVOKING EXECUTIVE ORDER NO. 11796 OF JULY 30, 19 74, AND
CONTINUING IN EFFECT EXECUTIVE ORDER NO. 1 1533 OF JUNE 4,
1970, RELATING TO THE ADMINISTRATION OF EXPORT CONTROLS

By virtue of the authority vested in the President by the
Constitution and statutes of the United States, including the
statutes referred to herein, it is herebv ordered :

Section 1. Executive Order No. ' 11796 of July 30, 1974,
issued under the authority of the act of October 6, 1917, as
amended (12 U.S.C. 95a), is hereby revoked, except that this
revocation shall not affect any violation of any rules, regula-
tions, orders, licenses, and other froms of administrative ac-
tion under said orders which occurred during the period said
order was in effect. -

Section 2. Pursuant to Public Law 93-372 of August 14,
1974, effective as of the close of July 30, 1974, Executive
Order No. 11533 of June 4, 1970, and all delegations, redele-
gations, rules, regulations, orders, licenses, and other forms
of administrative action under said order which were in ef-
fect on July 30, 1974, and which have not been revoked ad-
ministratively or legislatively, are continued and shall be in
full force and effect until amended, modified, or terminated
by proper authority.

Gerald R. Ford.

The White House, August IJf, 107. If..

U. S. Senate,
Special Committee on National Emergencies

and Delegated Emergency Powers,

Washington, D.C, April 23, 1976.
Hon. Abraham Ribicoff,

Chairman, Government Operations Committee, Dirhsen Senate Office
Building, Washington. D.C.
Dear Senator Ribicoff: The Special Committee on National Emer-
gencies and Delegated Emergency Powers has prepared a Source-
book on the National Emergencies Act. The document constitutes a
legislative history of the Act, bringing together into one volume texts

of bills, reports, Senate and House debate, and other pertinent docu-
ments. The volume also contains a bibliography of readings on emer-
gency powers and a short introductory essay describing the evolution
of the legislation. The Special Committee believes that the document
will prove enormously useful to scholars and researchers and could
be extremely important should a dispute over legislative intent ever
arise in time of emergency.

Since the Special Committee is scheduled to terminate on April 30,
1976, we would like to request that the Government Operations Com-
mittee assume responsibility for completion of the Sourcebook. The
only tasks that remain are: (1) to update the introductory essay on
the legislative history of the bill; (2) to insert final documents,
such as the Government Operations report, Senate debate, and the
President's messages on the legislation; and (3) to issue the docu-
ment for final printing. (All the other documents have been printed,
proofread and are ready for final printing.)

Should you have further questions concerning the document and
the work required to finish it, please contact Wilkie Sawyer or Gayle
Fitzpatrick at 4-1281.

We would be most grateful for your assistance.
Sincerely,

Charles McC. Mathias, Jr.
Frank Church.

STAFF REPORT ON EMERGENCY PREPAREDNESS
IN THE UNITED STATES

Senate Special Committee ox National Emergencies and
Delegated Emergency Powers

March 1976

66-474 O - 76 - 5

Emergency Preparedness in the United States

In its investigations the Special Committee on National Emergen-
cies and Delegated Emergency Powers has concentrated on determin-
ing the extent of emergency power delegated to the President and
recommending procedures for the declaration, administration, and ter-
mination of emergencies. It has not attempted to evaluate the state of
emergency preparedness in the United States. Only in its final days
did the Committee probe this question at all, and then only briefly.

The range and complexity of emergency issues make any evaluation
extremely difficult. 1 Too often government units, trapped within their
particular fragment of the bureaucratic puzzle, fail to examine issues
in all their parameters. In its brief probing of emergency preparedness
issues, the staff of the Committee attempted to cut across customary
lines of fragmentation and to take a broad view. To do this, the staff
solicited the views of representatives of Federal emergency agencies,
Congressional staff members, and nongovernmental experts.

The exploration raised serious questions, and the staff believes that
it is time to assess the effects of the 1973 administrative reorganization
and to evaluate the operation of the new structure with particular at-
tention to emergency preparedness, coordination, planning, and civil
liberties questions.

To facilitate such a study and to stimulate interest in and aware-
ness of the many issues involved, this report will summarize the find-
ings of the staff's brief survey. la

Background

Until 1973 responsibility for emergency coordination was vested in
the Office of Emergency Preparedness (OEP), located in the Execu-
tive Office of the President. OEP drew its authority from many
sources, some by delegation from the President and others directly by
statute. Its resource planning and mobilization functions were
founded in part on the National Security Act of 1947, 2 the Defense
Production Act of 1950, 3 and the Strategic and Critical Materials
Stockpiling Act. 4 In the Eisenhower administration, civil and defense

1 To evaluate planning and preparedness efforts in a comprehensive manner, it is
useful to develop analytical frameworks which will help structure an overview. Two
frameworks may be useful to later investigators. One method involves classifying the
specific types of emergency that could occur :

Economic : Depression, inflation, strikes, housing, agricultural, commodity trading,
municipal or corporate bankruptcies, domestic program failures, etc.

Natural Catastrophe : Drought, agricultural pests, plagues, climatic changes, famine,
floods, earthquakes, etc.

National Security : Defense, civil defense, internal security, hostilities, war, terrorism,
embargoes, nuclear threats (peacetime and wartime), etc.

Another method would be to assess: (1) Organizational capabilities, (2) material
resources, and (3) manpower availability.

la This report represents an initial probing of preparedness issues, rather than a final
statement on them. The staff was not able to conduct a thorough examination, and its
findings must be viewed with caution.

2 61 Stat. 495, 499 ; 50 U.S.C. 404.

3 60 Stat. 596 ; 50 U.S.C. app., sec. 2061 et seq.

4 64 Stat. 798; 50 U.S.C. 98 et seq. See also 50 U.S.C. app., sec. 2271 note and Execu-
tive Order 11051 set out therein.

(27)

mobilization functions were merged when Reorganization Plan Xo. 1
of 1958 joined the functions of the Federal Civil Defense Administra-
tion and the Office of Defense Mobilization in a new component of the
Executive Office of the President called the Office of Defense and
Civilian Mobilization. 5 The plan provided for a Director and Deputy
Director, three Assistant Directors, and ten Regional Directors : made
the Director a member of the National Security Council; and attached
to the new entity the Civil Defense Advisory Council, originally
created by the Federal Civil Defense Act of 1950. 6 By successive
statutes, the Office was renamed Office of Civil and Defense Mobiliza-
tion, 7 Office of Emergency Planning, 8 and, finally, Office of Emergency
Preparedness. 9

Through the years, OEP lost some functions and gained others. Bv
Executive Order 10952, dated July 20, 1961, 10 President Kennedy
withdrew designated civil defense functions from OEP and assiirned
them to the Department of Defense, where they still remain. OEP's
responsibility for telecommunications policy was withdrawn (and an
Assistant Director eliminated) when the Office of Telecommunications
Policy was established by Reorganization Plan Xo. 1 of 1970. 11 Im-
portant new responsibilities for supervising disaster relief were thrust
upon OEP by the Disaster Relief Act of 1970. 12 The OEP Director
was authorized to form emergency support teams of Federal person-
nel: to draw upon outside organizations; to establish regional office-:
to determine qualifications for assistance; to guide the activities of
emergency personnel; to provide temporary housing, transportation,
communications, and other facilities in emergencies; and to take other
actions in major disaster areas. Other laws added to OEP ? s responsi-
bilities in disaster relief, such as those which authorize Federal assi>t-
ance to educational institutions which have suffered damage or
destruction. 13

By law or delegation of Presidential authority, OEP also served
in various other capacities. Under section 232 of the Trade Expan-
sion Act of 1962, for example, the OEP Dii-ector was responsible
for investigating imports which might threaten to impair the na-
tional security. 14 He served by Presidential appointment as Chair-
man of the Oil Policy Committee, established by President Xixon
in February, 1970, following the report of a Cabinet task force on
oil import policy. 15

On January 26, 1973, President Xixon submitted to the Congress
Reorganziation Plan Number 1 of 1973. That plan called for the
abolition o,f the Office of Emergency Preparedness, the Office of
Science and Technology and the National Aeronautics and Space
Council and the transfer of their functions to old line agencies. Xixon

6 72 Stat. 1709: 5 U.R.C.. app. 5«o. Also printed at 50 U.3.C., app., sec. 2271 note.
•64 Stat. 1245, 1247; 50 U.S.C. app.. Bees 2251-2297.

7 72 Stat. 861 ; see 50 U.S.C. app., sec. 2271 note.

8 75 Stat. 630 ; see 50 U.S.C. app., sec. 2271 note.

9 82 Stat. 1194 ; see 50 U.S.C. app., sec. 2271 note.
» 3 CFR. 1959-19G3 Comp., p. 479.

« 5 U.S.C, app., p. 605.

"42 U.S.C. sec. 4401 et sen.

18 81 Stat. 810. 86 Stat. 299.

14 19 U.S.C. 862(b).

15 The information on pages 3-5 was excerpted from: U.S. Congress. Hou8e. Committee
on Government Operations. Reorganization Plan No. 1 of 1973 : House Report No. 93-106,
93rd Congress, 1st Session. Washington, U.S. Government Printing Office, 1973, pp. 12-13.

described the changes in the emergency preparedness area in the
following words:

In the interest of efficiency and economy, we can now fur-
ther streamline the Executive Office of the President by
formally relocating those responsibilities and closing the
Office of Emergency Preparedness.

I propose to accomplish this reform in two steps. First,
reorganization plan No. 1 would transfer to the President all
functions previously vested by law in the office or its director,
except the director's role as a member of the National Security
Council, which would be abolished ; and it would abolish the
Office of Emergency Preparedness.

The functions to be transferred to the President from
OEP largely incidental to emergency authorities already
vested in him. They include functions under the Disaster
Relief Act of 1970; the function o.f determining whether a
major disaster has occurred within the meaning of (1) Sec-
tion 7 of the Act of September 30, 1950, as amended, 30
U.S.C. 241-1, or (2) Section 7G2 (a) of the Higher Educa-
tion Act of 1965, as added by Section 161 (a) of the Edu-
cation Amendments of 1972, Public Law 92-318, 86 Stat.
288, 299 (relating to the furnishing by the Commissioner
of Education of disaster relief assistance for educational
purposes) ; and functions under Section 232 of the Trade
Expansion Act of 1962, as amended (19 U.S.C. 1862), with
respect to the conduct of investigations to determine the
effects on national security of the importation of certain
articles.

The Civil Defense Advisory Council within OEP would
also be abloished by this plan, as changes in domestic and
international conditions since its establishment in 1950 have
now obviated the need for a standing council of this type.
Should advice of the kind the council has provided be re-
quired again in the future, state and local officials and ex-
perts in the field can be consulted on an ad hoc basis.

Second, as soon as the plan became effective, I would
delegate OEP's .former functions as follows :

All OEP responsibilities having to do with prepared-
ness for and relief of civil emergencies and disasters
would be transferred to the Department of Housing
and Urban Development. This would provide greater
field capabilities for coordination of federal disaster
assistance with that provided by states and local com-
munities, and would be in keeping with the objective
of creating a broad, new Department of Community
Development.

OEPs responsibilities for measures to ensure the con-
tinuity of civil government operations in the event of
major military attack would be reassigned to the Gen-
eral Services Administration, as would responsibility for
resource mobilization including the management of na-
tional security stockpiles, with policy guidance in both

cases to be provided by the National Security Council,
and with economic considerations relating to changes in
stockpile levels to be coordinated by the Council on Eco-
nomic Policy.

Investigations of importa which might threaten the

national security — assigned to OEP by Section 232 of the

Trade Expansion Act of 1962 — would be reassigned to

the Treasury Department, whose other trade studies give

it a ready-made capability in this field; the National

Security Council would maintain its supervisory role

over strategic imports.

Those disaster relief authorities which have been reserved

to the President in the past, such as the authority to declare

major disasters, will continue to be exercised by him under

rapid interagency coordination, the federal response will be

coordinated by the Executive Office of the President in charge

of executive management.

The Oil Policy Committee will continue to function as in
the past, unaffected by this reorganization, except that I will
designate the Deputy Secretary of the Treasury as chairman
in place of the Director of OEP. The Committee will operate
under the general supervision of the Assistant to the Presi-
dent in charge of economic affairs.

The functions which would be abolished by this plan, and
the statutory authorities for each, are :

(1) The functions of the Director of the Office of Emer-
gency Preparedness with respect to being a member of the
National Security Council (Sec. 101, National Security Act
of 1947, as amended, 50 U.S.C. 402; and Sec. 4, Reorganiza-
tion Plan No. 1 of 1958) ;

(2) The functions of the Civil Defense Advisory Council
(Sec. 102(a) Federal Civil Defense Act of 1950; 50 U.S.C.
App. 2272 (a)) 16

Under the Reorganization Act of 1949, Executive reorganization
proposals take effect automatically unless either House of Congress
disapproves the plan within sixty days of its submission to Congress.
Both the House and Senate Government Operations Committee held
hearings on Reorganization Plan No. 1 of 1973. The Senate took no
action, while the House issued a report approving the plan. The
House group observed that "the President cannot be compelled to
utilize a policymaking and advisory apparatus in the Executive Office
against bis own preferences." The House report concluded:

We cannot predict how well the agencies will execute the
functions and responsibilities transferred to them by the re-
organization plan. The quality of leadership, the funds and
resources available, management techniques, and other fac-
tors will make a large difference. The fear expressed by some
critics of the plan is that the transferred functions will be
buried at lower levels in departmental or agency bureaucra-

19 U.S., President. Message, "Reorganization Plan No. 1, 1973," Hearings, before a
Subcommittee of the Committee on Government Operations, House of Representatives
03rd Congress, 1st Session. Washington, U.S. Government Printing Office, 1973, pp.

cies, and that performance will suffer accordingly. This result
is possible, but it will not follow automatically if common
sense, good management, and sufficient resources are brought
to bear. 17

Neither house having disapproved, the reorganization plan went
into effect. OEP was dismantled, and its authorities were split up
between different Executive agencies. The Federal Preparedness
Agency within GSA — known during a transitional period as the
Office of Preparedness — assumed responsibility for coordination and
planning. The Federal Disaster Assistance Administration within
HUD became the central agency in charge of natural disasters. The
Department of the Treasury assimilated those OEP functions regard-
ing investigation of imports which might threaten national security.
The Deputy Security of the Treasury replaced the OEP director as
Chairman of the Oil Policy Committee, and FPA lost the seat which
OEP had had on the National Security Council. The Civil Defense
Advisory Council within OEP was abolished, while the Defense Civil
Preparedness Agency, set up in 1972, continued as before.

Two investigations explored emergency preparedness issues in the
two years following the reorganization. Hearings conducted in 1973
by the Subcommittee on Disaster Relief of the Senate Public Works
Committee focused on the adequacy and effectiveness of federal disas-
ter relief legislation. In 1974, hearings held by a House Appropriations
Subcommittee indicated the need for a more complete investigation.
There was confusion about the exact relationship of the DCPA and the
Office of Preparedness (known as the FPA now). Georgiana Sheldon,
Deputy Director of the DCPA, decried the lack of Congressional
oversight.

Recently more studies have been launched. In January 1976, the
House Armed Services Subcommittee on Investigations set up a panel
to examine the nation's civil defense. The inquiry is particularly im-
portant since the Senate Armed Services Preparedness Investigating
Subcommittee has not held any hearings in the last year and a half.
In December 1975, GAO initiated its own examination of the Na-
tion's civil defense program. The study will focus on the Defense Civil
Preparedness Agency is an effort to determine its operating efficiency.
GAO plans to investigate the practicality of the Agency's programs
and the effectiveness of its assistance to states and local communities.
GAO is particularly concerned about possible overlap and inefficiency
between DCPA, FDAA, and FPA. Recently DCPA has been helping
anticipate and prepare for possible crises. Once a disaster has oc-
curred, the FDAA has assumed operational responsibility. FPA has
played an overall supervisory and coordinating role. GAO will in-
vestigate how these divided responsibilities operate in practice.

Concurrently, the Senate Government Operations Committee has
begun to examine the DMPA, FPA, FDAA, and the Emergency Pre-
paredness Office of the Secretary of the Interior. The Government
Operations staff has concerned that considerable overlap existed in
the programs of these agencies.

TMn" V«> ?£?#"l?; , Ho " se - C °™ mlt J& e °* Government Operations. Reorganization Plan
Gov/rnmenfrrin^inrOffice^Tt P 19 106 ' ^ C ° ngreSS ' Ut Se8S, ° D - Washi ^ton, U.S.

Organization

While promising, these inquiries will stop short of an overall assess-
ment of both emergency preparedness and planning efforts in this
country and the wisdom of the new administrative structure set up
under Reorganization Plan Number 1 of 1973.

The Committee staff believes that now— three years after that re-
organization — an investigation into preparedness operations is in
order. During recent years a trend toward decentralizing govern-
mental functions has emerged, but serious questions exist about
whether the nation benefits from decentralization of emergency pre-
paredness activities. Alternatives to the present arrangement must be
examined for their possible benefits.

The current policy of the U.S. is to operate a decentralized system,
coordinated by an agency located in GSA, the Federal Preparedness
Agency. FPA retains some of the operational duties of OEP, most
notably in maintaining stockpiles and underground facilities and sup-
plies, but compared to its predecessor, FPA is relatively free of oper-
ational responsibility. Its main responsibility is to provide policy
guidance for emergency preparedness programs and to coordinate
programs throughout the U.S. government. The Agency operates with
a staff of over 200 people and with an unclassified administrative
budget of about $7 million. Ten regional offices provide guidance to
other Federal field offices and to state and local governments in plan-
ning and developing their readiness programs. Beyond its administra-
tive structure, FPA has three main divisions: (1) Conflict Prepared-
ness runs emergency facilities, "Continuity of the U.S. Government"
operations, and other programs; (2) Civil Crisis Preparedness han-
dles stockpiles, industrial mobilization, and crisis management; and
(3) Research, Development, and Program Development explores in-
creasingly-sophisticated technologies.

A discussion of the relative merits of the present and alternate ad-
ministrative structures might start with an examination of the deci-
sion to dismantle OEP and to establish FPA. Nixon said that he was
acting "in the interest of efficiency and economy." Later, in testimony,
Fred Malek, Deputy Director of the Office of Management and
Budget, stated :

One objective is to reduce the size of the Executive Office,
but, more important is the need for reorienting the Executive
Office to focus on its original mission as a staff for top-level
policy formation and monitoring of policy execution in
broad functional areas. These actions are also'consistent with
the President's overall purpose of strengthening and upgrad-
ing the capacity of our line departments and agencies, and to
press for further decentralization of Federal activity to field
offices and even to the communities themselves, wherever we
can bring the Government closer to the people. 18

The staff found that most people interviewed placed great stress on
the political pressure to cut back the Executive Office. One FPA offi-
cial argued that the President was trying to prod agencies and depart-

18 F.S.. Congress, House. Committee on Government Operations, "Reorganization Plan
No. 1 of 1973. Hearings," before a subcommittee of the Committee on Government Opera-
tions, House of Representatives, 93rd Congress, 1st sess., February 2G, 1973, p. 3.

ments to rethink and restructure their administrative organizations.
Others pointed to a longstanding antagonism between OMB and OEP
and noted that a committee chaired by OMB director Roy Ash had
recommended a restructuring of OEP. According to this argument,
OMB had always seen OEP as a rival, so when the idea of reorganiz-
ing government gained favor and OEP issued some reports embarrass-
ing to the Administration, OMB seized the occasion and moved to
revamp OEP.

Whatever the reasons, current debate on different administrative
arrangements should focus on several key questions. One policy matter
is whether the lead coordinating agency should have operational re-
sponsibility, and if so, how much.

The staff found agreement that the lead agency is probably better
off without responsibility for oil and natural disaster programs. FPA
spokesmen and critics generally agree that reduction of natural dis-
aster responsibilities has benefitted FPA. One official observed that
OEP's work had always been characterized by a stop-and-go quality.
People would begin a project only to be interrupted when some natural
disaster would demand their attention. Now that FDAA has taken
over the handling of natural disasters, the problem has been alleviated.
Similarly, a consensus seemed to exist that oil matters had become so
complex and vital that they were better handled separately.

Whether the central coordinating agency should be free of all
operational responsibility is a more controversial subject. Critics argue
that first-hand exposure to emergencies and personal experience in
handling them insure that planning preparedness, and coordination
efforts remain realistic. They insist that cutting administrators and
planners off from immediate contact with emergency conditions leads
to an isolation that has a detrimental effect on efforts to make efficient,
realistic preparations.

A top FPA official admitted that he was not certain what structure
would he most advantageous. He ended up suggesting that the best
solution might be not a "restored OEP" or the present setup, but a
hybrid structure — a centralized agency with operational responsibili-
ties which stopped short of natural disasters and oil policies.

Another issue centers on the importance of the specific location of
the coordinating agency within the government 19 OEP, by virtue of its
location in the Executive Office of the President, exercised consider-
able "clout." The staff found universal agreement that FPA carries
less political prestige and muscle than its predecessor. As a result,
FPA requests elicit slower responses, involve more red tape, and, gen-
erally, take a longer time.

The diminished "clout" of FPA raises serious questions about the
importance and effectiveness of its leadership role. Some argue that it
is imperative that the Agency be moved from GSA and either be set up

"An Arthur D. Little study on "Industrial Preparedness in an Arras Control Environ-
ment." prepared in December 1974 for the Arms Control and Disarmament Agency
(ACDA), also raised the issue of location: "It is possible to point out areas in the pre-
paredness system where effort might be rewarded with improvement. One such area is
the standby organization for industrial mobilization. The principal issue here appears
to be the level at which the primary mobilization coordination responsibility is fixed
within the Executive Branch. * * * The link with arms control • • * may not have
been fully appreciated when the 1973 decision was made and its emerging significance
suggests that a different disposition should at least be considered."

by itself or be attached to the National Security Council, Domestic
Council, or the Office of Management and Budget. This line of argu-
ment is based on the view that the coordinating agency has to occupy
a significant position to possess enough authority to command respect
and to be effective. Prime location is important, if only to insure that
the President is aware of the coordinating agency's services and makes
use of them. Proponents of this view believe that under the present
structure Executive decisionmakers are frequently unaware that FPA
has information which would be of use to them.

It seems clear that FPA does not play a major policy role in crisis
situations. Frequently, when a project has needed to be organized
quickly and political muscle has been required, the Office of Manage-
ment and Budget has taken command of the situation. As an OMB
official observed, "crisis direction was required, and it had to be out of
the President's office."

The issue is whether OMB is suited to its new role. Critics contend
that it is not. They stress that while OMB has Executive clout, it does
not have the expertise required to successfully handle emergencies.
They argue that there is high pay-off in using people who have had
experience in planning for and coping with emergency situations.
Keliance on those with prior experience is particularly important in
improving efficiency during the first seventy-two hours of the emer-
gency. In the view of critics, OMB is ill-suited to its fire-fighting role :
it cannot provide the expertise necessary to expedite the handling of
emergencies.

Another major policy question concerns the effectiveness of coordi-
nation. Critics charge that present efforts are inefficient and frag-
mented. A 1974 Arthur D. Little study lent credence to this view, find-
ing that "officials familiar with the preparedness system feel concern
over divisions of responsibility, possible gaps between agencies, and a
lack of full coordination." The study concluded, "An effort to confirm
these views and develop remedies for such deficiencies as are verified
seems warranted." 20

In its own investigation, the staff found particular concern over the
uneven coordination between state and local agencies and the Federal
bureaucracy. States apparently find it difficult to work with the re-
organized Federal structure. They would prefer to deal with a single
unified Federal agency capable of granting them lump sum grants.
The present fragmented system — in which agencies have overlapping
jurisdictions and coordination efforts prior to an emergency are dis-
tinct from those following a disaster — frustrates and confuses them.
States have problems identifying the source of needed funds, and they
have trouble complying with the "strings" frequently attached to
grants. The use of funds allocated by the Defense Civil Preparedness
Agency seems to have been a subject of particular controversy.

FPA officials acknowledge these problems. They were eager to im-
prove coordination with state and local agencies. In addition, they
(and FDAA officials) indicated that contact between FPxY and FDA A
is minimal and that coordination between the two agencies is in need
of improvement.

Despite these problems, FPA representatives believe that the system
works better than critics charge. Problems that have surfaced reflect

20 Arthur D. Little, "Industrial Preparedness in an Arms Control Environment," p. 68.

in large part the settling out of the new administrative apparatus, and
generally, coordination within the Federal bureaucracy is effective.
Difficulties are being worked out through administrative arrangements
and informal agreements.

Finally, in this time of government deficits and tight budgets,
comparative budgetary figures will also have to be considered. When
the Nixon Administration presented Reorganization Number 1, offi-
cial spokesmen heralded savings of some $2 million, but none of the
savings was to result from the restructuring of the emergency agen-
cies. In fact, a high FPA official has suggested that the present decen-
tralized set-up is more expensive to operate. If true, it is only natural
to examine what advantages the new structure offers and to ask
whether they warrant the additional expenditures.

Planning

An evaluation of planning efforts within the government seems wise
in light of widespread skepticism about planning. Critics contend that
the level of planning has been excessive in the past and that efforts
that are undertaken in the future should be more realistic, emphasizing
existing structures and resources rather than relying on contingency
structures and plans. They view planning efforts as an academic exer-
cise, an impractical activity conducted in a world of contingencies too
often separated from more mundane realities. They argue that plan-
ning is an expensive luxury that is hard to justify when all programs
are being scrutinized for possible savings and other programs provide
more concrete and visible results.

Former OEP officials and current FPA spokesmen strongly defend
the need for advance planning. In defining planning, they speak of the
anticipation of potential crises and preparation of appropriate govern-
mental responses, including the establishment of procedures, the per-
fection of methodologies, the collection of important data, and the
identification of skilled personnel. These officials argue that the com-
plexity and increasing interdependence of the world and the concur-
rent growth in the potential for and ramifications of devastating
disasters make advance work absolutely essential.

FPA officials expressed concern that the present administrative ap-
paratus and appropriations process were biased against planning ef-
forts. No single appropriations control point exists to insure that
enough money has gone into planning. Individual committees of the
Congress make independent decisions on each agency's request with-
out any concern for the overall outcome. FPA cannot exert the
political muscle that OEP could, and no one else has a big stake in
contingency planning. Consequently, when agencies negotiate their
budgetary requests and Congressional committees give them further
examination, funds requested for planning efforts are particularly
vulnerable.

The ending of the delegate agency funding process was of particu-
lar concern to FPA officials. Under this system the lead preparedness
agency maintained control over funds, when it used to insure that
vital planning efforts went ahead. According to FPA representatives,
the existence of the fund gave the lead agency both latitude and lever-
age, while also simplifying the accounting of expenditures in the
emergency area. Congress eliminated the system, in part, because it

made more difficult efforts to keep track of the exact sums each de-
partment was spending on preparedness efforts. FPA officials did not
recommend restoration of the delegate agency funding process, but
insisted that some type of budgetary pool was necessary to insure con-
tinuity of planning and to guarantee completion of any planning
whose impact extends beyond a single department.

FPA officials were more concerned about the future implications of
the decreasing interest in preparedness planning than about the pres-
ent results. They worried that the cumulative effort of the small incre-
mental steps in which planning efforts were receiving less and less
support would be extremely serious. They emphasized that certain
types of planning were dynamic and in need of constant revision, and
they expressed fears that this planning would become obsolescent and
would deteriorate to a dangerous point.

The staff believes that further investigation of these issues is war-
ranted. In the face of an evident decline in planning efforts, the
amount of planning the nation should support is an obvious area of
inquiry. The problem is to find the elusive mean between excessive
and inadequate planning. The staff believes that concerns expressed
by FPA officials are legitimate, but that they^ust be coupled with
a recognition that planning inevitably has diminishing return*. It
does not seem wise to prepare elaborate plans for every possible con-
tingency. Certain types of planning might be carried out in specific
parts of the nation and then be applied elsewhere as required. Plan-
ning may be most viable for crises of a limited nature, as a former
OEP official suggested. Some thought is required to insure that plan-
ning is conducted not just with an eye to maximizing efficiency, but
also with an eye to confining actions to the restraints of the Constitu-
tion and the law. Efforts must be made to make certain that advance
planning is formulated to provide procedures for the protection of
civil liberties and that all emergency preparations are in accordance
with constitutional processes. It is essential to assess the impact of
specific planning in a broader framework. For instance, plans for re-
locating whole segments of the population in the event of a nuclear
threat must be considered within the perspective of an overall policy
of nuclear parity. Such plans might be viewed by an enemy as our
preparation for a first strike and be escalatory in ways that were un-
intended. At the same time, relocation plans may violate important
civil liberties.

The quality and efficiency of current planning efforts must be
examined along with other questions, such as the extent to which
affected agencies are involved in advance planning. It will be im-
portant to judge how well officials are anticipating the diverse types
of emergencies that might occur. War and natural disasters are the
commonest but the near default of New York City suggests an entirely
different realm of economic emergencies and raises the question
whether other possible calamities have been anticipated.

Any investigation should not neglect the critical importance of the
lead organizational agency. The coordinating agency plays a key role,
particularly in charting unexplored terrain, such as the possible
dangers of world terrorism and peacetime nuclear emergencies. It
seems wise to examine both the contention of FPA officials that the

central agency should serve as a control point in the allocation of
funds and the suggestion of others that the diminished political
muscle of the FPA has materially hurt planning efforts.

Any assessment of planning and preparedness efforts in the United
States should give certain areas special scrutiny. In April 1973, the
strategic and critical materials stockpile objectives were reduced by
a quantity valued at more than $4 billion. The rationale for this abrupt
change in policy is unclear. An investigation by GAO seems to be lead-
ing to a reevaluation of stockpile assumptions, but it is essential that
Congress insure that the nation's policies in this area are not subject
to dramatic fluctuation or political whim.

Another issue concerns Executive Reserves. Under this program,
selected American citizens are assigned key governmental roles which
they are to assume in an emergency. In effect, these officials constitute
a type of "shadow government." Serious questions — such as the extent
of the program, the type of individuals involved, the advisability of
public disclosure, and the manner of activation of these reserves —
suggest the need for further investigation. In December 1973, in testi-
mony before the Senate Interior Subcommittee on Integrated Oil Op-
erations, Senator Lee Metcalf expressed concern about the extent of
industry representation in the Emergency Petroleum and Gas Admin-
istration Executive Reserve. The staff of the Special Committee feels
that the extent of industry control in all Executive Reserve programs
merits investigation. An inquiry seems wise in view of the findings of
the House Small Business Subcommittee on Energy and the Environ-
ment that "politicalization" and "disregard for conflict of interest con-
siderations" plague the Presidential Executive Interchange Program
created by President Johnson in 1969.

Another issue involves representation of the chief preparedness
agency on the National Security Council. OEP was represented on
that body, but the preparedness representative was removed in the
1973 reorganization. The staff heard different views on this issue. A
former OEP official felt that it would be difficult to make a compelling
case for representation, since most of the items on the National Se-
curity Council agenda are matters concerning the CIA and State and
Defense Departments. An FPA official felt that the chief prepared-
ness agency should naturally be represented on that group, but was
under no illusion that membership would bring immediate influence.

Civil Liberties

Finally, there are a range of government programs which warrant
investigation because they pose a potential threat to civil liberties.
Emergency censorship demands more thorough scrutiny. In 1972,
the House Government Operations Subcommittee on Foreign Opera-
tions and Government Information held hearings on the "Wartime
Information Security Program," but these hearings did not constitute
an exhaustive inquiry.

The maintenance of lists of people to be watched or to be detained
in time of national emergency is another sensitive area. Of particular
concern are contingency plans, developed by the Justice Department,
for a domestic emergency. In an article by Harvard law professor
Alan Dershowitz appearing in the March/April, 1973, Liberty,
Richard Kliendienst, the Deputy Attorney General at that time, is

quoted as saying : "We have careful plans ready to be put into effect
in the event of any emergency requiring Federal troops." The Senate
Select Committee on Intelligence Activities and the House Judiciary
Subcommittee on Civil Liberties have begun investigations of these
matters, but the Congress still awaits the results of these inquiries.

Another matter of concern is the number of organizations which
have been established in a dormant status to be activated upon the
President's determination in a national emergency. Planned agencies,
such as the Office of Defense Resources and the Office of Economic
Stabilization, may require further study.

Perhaps the operation most in need of scrutiny is the series of gov-
ernment relocation centers operated under the FPA's "continuity of
government" program. Recent articles by Richard P. Pollock in The
Progressive 21 and the new Washington weekly, Newsworks? 2 have
detailed the operations of Mount Weather and other relocation sites
operated outside Washington, D.C. The staff is concerned about the
lack of Congressional oversight and the absence of evidence that these
facilities are being run in accordance with constitutional processes.
If these programs are to continue, it is imperative that adequate safe-
guards exist in the activation and operation of Mount Weather and
other relocation sites. The Senate Judiciary Subcommittee on Consti-
tutional Rights has begun to probe this area but has found it difficult
to penetrate the veil of secrecy surrounding these programs.

81 Richard P. Pollock, "The Mysterious Mountain," The Progressive, Madison, Wis.,
March 1976, pp. 12-16.

» Richard P. Pollock "Flight 514 and the Secret of Mount Weather." Washington News
works, Washington, D.C., February 12-18. 1976, pp. 7-8.

Ill

The National Emergencies Act (P.L. 94-412)

1. Introduction of S. 3957. 93rd Congress.

2. Text of S. 3957, 93rd Congress.

3. Senate Report on S. 3957, 93rd Congress.

4. Senate debate and adoption of S. 3957, 93rd Congress.

5. Introduction of H.R. 16668, 93rd Congress.

6. Text of H.R. 16668, 93rd Congress.

7. Introduction of H.R. 3884. 94th Congress.

8. Text of H.R. 3884, 94th Congress.

9. House Report on H.R. 3884, 94th Congress.

10. House debate and adoption of H.R. 3884, 94th Congress.

11. Introduction of S. 977, 94th Congress.

12. Text of S. 977. 94th Congress.

13. Senate Report on H.R. 3884. 94th Congress.

14. Senate debate and adoption of H.R. 3884. 94th Congress.

15. Text of Public Law 94-412. The Xational Emergencies Act.

Ill

The National Emergencies Act (P.L. 94-412)

1. Introduction of S. 3957. 93rd Congress.

2. Text of S. 3957, 93rd Congress.

3. Senate Report on S. 3957. 93rd Congress.

4. Senate debate and adoption of S. 3957, 93rd Congress.

5. Introduction of H.R. 16668, 93rd Congress.

6. Text of H.R. 16668, 93rd Congress.

7. Introduction of H.R. 3884, 94th Congress.

8. Text of H.R. 3884. 94th Congress.

9. House Report on H.R, 3884, 94th Congress.

10. House debate and adoption of H.R. 3884, 94th Congress.

11. Introduction of S. 977, 94th Congress.

12. Text of S. 977, 94th Congress.

13. Senate Report on H.R. 3884, 94th Congress.

14. Senate debate and adoption of H.R. 3884. 94th Congress.

15. Text of Public Law 04— 11l ; . The National Emergencies Act.

INTRODUCTION OF S. 3957. 93rd CONGRESS

[Congressional Record — v. 120. Aug. 22. 1974 — pp. S15784-S15794]

A National Emergencies Act

Mr. Church. Mr. President, in his address to the joint session of
Congress on Monday. August 12. President Gerald Ford said that "we
have work to do." President Ford addressed this imperative to the
Congress.

On behalf of the eight members of the Special Committee on Na-
tional Emergencies and Delegated Emergency Powers. Senator
Mathias. the cochairman of this committee, and I introduce today a
National Emergencies Act. In the view of the Special Committee, this
proposed legislation is urgent work for the Congress and the Execu-
tive branch. The Special Committee strongly recommends that this leg-
islation be acted upon, if at all possible, before the Congress adjourns.

For over a year and a half, the Special Committee has been engaged
in a study of the effects of emergency rule upon the constitutional
government of the United States. Most Americans are unaware that
they have been living under a continuous state of national emergency
since 1933. In fact, there are four states of national emergency now in
force :

The national emergency declared by President Roosevelt on March 6.
1933. to meet the crisis of the depression has still not been formally
terminated.

The December 16. 1950, national emergency declared by President
Truman in order to better prosecute the Korea War is still in force.

The national emergency declared by President Nixon on March 23.

1970, to handle the Post Office strike is still in force.

The national emergency declared by President Nixon on August 15,

1971. to carry out currency restrictions and to enforce foreign economic
controls still remains in force.

These four states of national emergency confer upon the President
the power contained in over 470 emergency statutes to control the lives
of all American citizens in a host of particular ways. It is important
to understand that these laws affect every area of American life.

It is fortunate that at this time, when the fears and tensions of the
Cold War are giving way to relative peace, and detente is now national
policy. Congress has had the opportunity to assess the statutes — some
470 significant provisions become known as emergency powers legisla-
tion. Emergency powers make up a relatively small but important
body of statutes out of the total of thousands that have been passed
or recodified since 1933. But emergency powers laws are of such im-
portance to civil liberties, to the operation of domestic and foreign
commerce, and the normal functioning of the U.S. Government, that
Congress should delay no longer in regularizing their use.

(71)

66-474 O - 76

A number of conclusions can be drawn from the Special Committee's
study and analysis of emergency powers laws now in effect, Congress
has, in large measure, permitted the Executive branch to draft and thus
to "make the laws." This has occurred despite the constitutional re-
sponsibility conferred on Congress by article I, section 8 of the Consti-
tution which states that it is Congress that "makes all Laws."

Most of the 470 statutes pertaining to emergency powers were passed
in times of real or perceived crisis. Bills drafted in the Executive
branch were sent to Congress by the President and, in most cases, were
approved with only the most perfunctory Committee review. Virtually
no consideration was given to their effect on civil liberties or theii
impact on the constitutional balance between the Executive and Legis-
lative branches of the Government. For example, the economic meas-
ures that were passed in 1933 pursuant to the proclamation of March 5,
1933, by President Roosevelt, asserting that a state of national emer-
gency existed, were enacted with the most unseemly haste. There was
a total of only eight hours of debate in both houses. There were no
committee reports ; indeed, only one copy of the bill was available on
the floor.

This pattern of hurried and inadequate consideration was repeated
during World War II when another group of laws with far-reaching
implications was passed. It was repeated once more during the Korean
War and, again, in most recent memory, during the debate on the
Tonkin Gulf Resolution, passed on August 6, 1964.

On occasions, legislative history shows that during the limited de-
bates that did take place, a few, out very few, objections were raised
by Senators and Congressmen expressing concern about the lack of
provision for Congressional oversight, as well as the absence of any
terminal date for the authorities granted. Their speeches raised legiti-
mate doubts about the wisdom of giving such open-ended authority
to the President, with no procedural means provided to withdraw that
authority once the emergency had passed.

For example, one of the very first of these laws, enacted in 1933,
was the Emergency Banking Act based upon section 5 (b) of the Trad-
ing With the Enemy Act of 1917. This act gave to President Roosevelt,
with the full approval of Congress, the power to control major aspects
of the economy, an authority which had formerly been reserved to the
Congress. A portion of that act, still in force, is quoted here to illus-
trate the kind of open-ended authority Congress has typically given
to the President during the past 40 years :

(b) (1) During the time of war or during any other period of national emer-
gency declared by the President, the President may, through any agency that
he may designate, or otherwise, and under such rules and regulations as he may
prescribe, by means of instructions, licenses, or otherwise —

(A) investigate, regulate, or prohibit, any transaction in foreign exchange,
transfers of credit or payments between, by, through, or to any banking institu-
tion, and the importing, exporting, hoarding, melting, or ear-marking of gold or
silver coin or bullion, currency or securities, and

(B) investigate, regulate, direct and compel, nullify, void, prevent or pro-
hibit, any acquisition, holding, withholding, use, transfer, withdrawal, trans-
portation, importation or exportation of, or dealing in, or exercising any right,
power, or privilege with respect to, or transactions involving, any property in
which any foreign country or a national thereof has any interest,

by any person, or with respect to any property, subject to the jurisdiction of the
United States ; and any property or interest of any foreign country or national

thereof shall vest, when, as, and upon the terms, directed by the President, in such
agency or person as may be designated from time to time by the President, and
upon such terms and conditions as the President may prescribe such interest or
property shall be held, used, administered, liquidated, sold, or otherwise dealt
with in the interest of and for the benefit of the United States, and such designated
agency or person may perform any and all acts incident to the accomplishment or
furtherance of these purposes ; and the President shall, in the manner herein-
above provided, require any person to keep a full record of, and to furnish under
oath, in the form of reports or otherwise, complete information relative to any
act or transaction referred to in this subdivision either before, during, or after
the completion thereof, or relative to any interest in foreign property, or relative
to any property in which any foreign country or any national thereof has or has
had any interest, or as may be otherwise necessary to enforce the provisions of
this subdivision, and in any case in which a report could be required, the Presi-
dent may, in the manner hereinabove provided, require the production, or if nec-
essary to the national security or defense, the seizure, of any books of account,
records, contracts, letters, memoranda, or other papers, in the custody or control
of such person ; and the President may, in the manner hereinabove provided,
take other and farther measures not inconsistent herewith for the enforcement
of this subdivision.

(2) Any payment, conveyance, transfer, assignment, or delivery of property or
interest therein, made to or for the account of the United States, or as otherwise
directed, pursuant to this subdivision or any rule, regulation, instruction, or direc-
tion issued hereunder shall to the extent thereof be a full acquittance and dis-
charge for all purposes of the obligation of the person making the same ; and no
person shall be held liable in any court for or in respect to anything done or
omitted in good faith in connection with the administration of, or in pursuance
of and in reliance on, this subdivision, or any rule, regulation, instruction, or
direction issued hereunder.

The repeal of almost all of the Emergency Detention Act of 1950 was
a constructive and necessary step, but the following provision remains :

18 U.S.C. 1383. Restrictions in military areas and zones.

Whoever, contrary to the restrictions applicable thereto, enters, remains in,
leaves, or commits any act in any military area or military zone prescribed under
the authority of an Executive order of the President, by the Secretary of the
Army, or by any military commander designated by the Secretary of the Army,
shall, if it appears that he knew or should have known of the existence and extent
of the restrictions or order and that his act was in violation thereof, be fined not
more than $5,000 or imprisoned not more than one year, or both.

On its face, 18 U.S.C. 1383 does not appear to be an emergency power.
A similar law, the Alien Detention Act, was used as the basis for intern-
ment of Japanese Americans in World War II. Although it seems to
be cast as a permanent power, the legislative history of the section
shows that the statute was intended as a World War II emergency
power only, and was not intended to apply in "normal" peacetime cir-
cumstances. Three years ago, the Emergency Detention Act was re-
pealed, yet 18 U.S.C. 1383 has almost the same effect. In the view of the
Special Committee, this provision should be repealed.

What these examples suggest, and what the magnitude of emergency
powers affirm, is that most of these laws do not provide for Congres-
sional oversight or termination. There are two reasons which can be
adduced as to why this is so. First, few, if any, foresaw that the tem-
porary states of emergency declared in 1933, 1939, 1941, 1950, 1970, and
1971, would become what are now regarded collectively as virtually
permanent states of emergency — the 1939 and 1941 emergencies were
terminated in 1952. Forty years can, in no way, be defined as a tempo-
rary emergency. Second, the various administrations which drafted
these laws were uninterested in providing for Congressional review,

oversight, or termination of these delegated powers which gave to the
President such wide-ranging authority.

The climate of crisis which sped these emergency laws through Con-
_ ss is well exemplified by the language in President Truman's 1950
proclamation :

Whereas recent events in Korea and elsewhere constitute a grave threat to the
peace of the world and imperil the efforts of this country and those of the United
Nations to prevent aggression and armed conflict : and

Whereas world conquest by communist imperialism is the goal of the forces of
aggression that have been loosed upon the world ; and

Whereas, if the goal of communist imperialism were to be achieved, the people
of this country would no longer enjoy the full and rich life they have with God's
help built for themselves and their children; they would no longer enjoy the
blessings of the freedom of worshipping as they severally choose, the freedom of
reading and listening to what they choose, the right of free speech, including the
right to criticize their Government, the right to choose those who conduct their
Government, the right to engage freely in collective bargaining, the right to
engage freely in their own business enterprises, and the many other freedoms and
rights which are a part of our way of life ; and

Whereas, the increasing menace of the forces of communist aggression requires
that the national defense of the United States be strengthened as speedily as
possible :

Xow. therefore, I, Harry S Truman. President of the United States of America,
do proclaim the existence of a national emergency, which requires that the mili-
tary, naval, air. and civilian defenses of this country be strengthened as speedily
as possible to the end that we may be able to repel any and all threats against
our national security and to fulfill our responsibilities in the efforts being made
through the United Nations and otherwise to bring about lasting peace.

I summon all citizens to make a united effort for the security and well-being
of our beloved country and to place its needs foremost in thought and action that
the full moral and material strength of the Nation may be readied for the dangers
which threaten us.

I summon our farmers, our workers in industry, and our businessmen to make
a mighty production effort to meet the defense requirements of the Nation and
to this end to eliminate all waste and inefficiency and to subordinate all lesser
interests to the common good.

I summon every person and every community to make, with a spirit of neigh-
borliness. whatever sacrifices are necessary for the welfare of the Nation.

I summon all State and local leaders and officials to cooperate fully with the
military and civilian defense agencies of the United States in the national
defense program.

I summon all citizens to be loyal to the principles upon which our Nation is
founded, to keep faith with our friends and allies, and to be firm in our devotion
to the peaceful purposes for which the United Nations was founded.

I am confident that we will meet the dangers that confront us with courage
and determination, strong in the faith that we can thereby "secure the Blessings
of Liberty to ourselves and our Posterity.'"

In Witness Whereof. I have hereunto set my hand and caused the Seal of the
United States of America to be affixed.

Done at the City of Washington this 16th day of December (10 :20 a.m. i in the
year of our Lord nineteen hundred and fifty, and of the Independence of the
United States of America the one hundred and seventy-fifth.

The pervasive sense of crisis so evident in Truman's proclamation
has fortunately eased. The legislative shortcomings contained in these
many emergency laws can now be corrected on the basis of a rational
review and revised procedures for the future.

In the view of the Special Committee, an emergency situation does
not now exist. Congress, therefore, should act now to terminate the
states of national emergencv presently in effect.

At the same time, the Special Committee is of the view that the Presi-
dent must lie left free to deal effectivelv in the case of future emer-

gencies. It is reasonable to keep a body of laws in readiness for the
President's use. whenever a new national emergency occurs. That por-
tion of the concurring opinion given by Justice Jackson in the Youngs-
town Steel case with regard to emergency powers, provides sound
guidelines for the maintenance of such a body of emergency laws kept
in readiness. Justice Jackson, supporting the majority opinion that
the "President's power must stem either from an act of Congress or
from the Constitution itself" wrote :

The appeal, however, that we declare the existence of inherent powers ex
necessitate to meet an emergency asks us to do what many think would be wise.
although it is something the forefathers omitted. They knew what emergencies
were, knew the pressures they engendered for authoritative action, knew, too,
how they afford a ready pretext for usurpation. We may also suspect that they
suspected that emergency powers would tend to kindle emergencies. Aside from
suspension of the privilege of the writ of habeas corpus in time of rebelli
invasion, when the public safety may require it. they made no express provision
for exercise of extraordinary authority because of a crisis. I do not think we
rightfully may so amend their work. and. if we could. I am not convinced it
would be wise to do so. although many modern nations have forthrightly recog-
nized that war and economic crises may upset the normal balance between
liberty and authority. Their experience with emergency powers may not be ir-
relevant to the argument here that we should say that the Executive, of his
own volition, can invest himself with undefined emergency powers.

Germany, after the First World War. framed the Weimar Constitution, de-
signed to secure her liberties in the Western tradition. However, the President
of the Republic, without concurrence of the Reichstag, was empowered tem-
porarily to suspend any or all individual rights if public safety and order were
seriously disturbed or endangered. This proved a temptation to every govern-
ment, whatever its shade of opinion, and in 13 years suspension of rights was
invoked on more than 250 occasions. Finally. Hitler persuaded President von
Hiudenburg to suspend all such rights, and they were never restored.

The French Republic provided for a very different kind of emergency govern-
ment known as the "state of seige." It differed from the German emergency
dictatorship particularly in that emergency powers could not be assumed at will
by the Executive but could only be granted as a parliamentary measure. And
it did not. as in Germany, result in a suspension or abrogation of law but was
a legal institution governed by special legal rules and terminable by parlia-
mentary authority.

Great Britain also lias fought both World Wars under a sort of temporary
dictatorship created by legislation. As Parliament is not bound by written con-
stitutional limitations, it established a crisis government simply by delegation
to its Ministers of a larger measure than usual of its own unlimited power,
which is exercised under its supervision by Ministers whom it may dismiss.
This has been called the "high-water mark in the voluntary surrender of liberty."
but. as Churchill put it. "Parliament stands custodian of these surrendered lib-
erties, and its most sacred duty will be to restore them in their fullness when
victory has crowned our exertions and our perseverance." Thus, parliamentary
controls made emergency powers compatible with freedom.

This contemporary foreign experience may be inconclusive as to the wisdom
of lodging emergency powers somewhere in a modern government. But it suggests
that emergency powers are consistent with free government only when their
control is lodged elsewhere than in the Executive who exercises them. That is
the safeguard that would be nullified by our adoption of the "inherent powers*'
formula. Xothinjr in my experience convinces me that such risks are warranted
by any real necessity, although such powers would, of course, be an Executive
convenience.

In the practical working of our Government we already have evolved a tech-
nique within the framework of the Constitution by which normal Executive
powers may be considerably expanded to meet an emergency. Congress may and
has granted extraordinary authorities which lie dormant in normal times bur
may be called into play by the Executive in war or upon proclamation of a
national emergency. In 1939. upon Congressional request, the Attorney General
listed ninety-nine such separate statutory grants by Congress of emergency or

has\™ e nT^ f i™ eaSe ' exiJedition and s^K with which Congress can grant and
has granted large emergency powers, certainly ample to embrace this or sit T
am quite unimpressed with the argument that we^houinffirm possesS'of
them without statute. Such power either has no beginning or ifhas no ?nd If
it exists, it need submit to no legal restraint. I am not alarmed than would
SireXn 8 StmightWay int0 ^tatorship, but it is at least a step in that wrong

But I have no illusion that any decision by this Court can keep power in the
hands of Congress if it is not wise and timely in meeting its problems. A crisis
that challenges the President equally, or perhaps primarily, challenges Con-
gress. If not good law, there was worldly wisdom in the maxim attributed to
Napoleon that "the tools belong to the man who can use them." We may say
that power to legislate for emergencies belongs in the hands of Congress, but
only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, under-
neath the law"— to be governed by those impersonal forces which we call law.
Our Government is fashioned to fulfill this concept so far as humanly possible.
The Executive, except for recommendation and veto, has no legislative power. The
Executive action we have here originates in the individual will of the President
and represents an exercise of authority without law. No one, perhaps not even
the President, knows the limits of the power he may seek to exert in this instance
and the parties affected cannot learn the limit of their rights. We do not know
today what pow r ers over labor or property would be claimed to flow from Gov-
ernment possession if we should legalize it, what rights to compensation would
be claimed or recognized, or on what contingency it would end. With all its de-
fects, delays and inconveniences, men have discovered no technique for long
preserving free government except that the Executive be under the law, and that
the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court
to be last, not first, to give them up.

Within the guidelines so profoundly expressed in the Youngstown
case, and against the background of the last 40 years, the Special Com-
mittee has drawn up the proposed legislation we introduce today. The
Special Committee has done so by working in close cooperation with
all of the standing committees of the Senate and all departments, com-
missions, and agencies of the Executive branch.

I might say, Mr. President, that I have enjoyed the close cooperation
of my fellow chairman of this unique committee. It is the only bi-
partisan committee in the Congress, consisting of four Republican and
four Democratic members. My cochairman, Senator Mathias, has not
only worked diligently in the drafting of this legislation but he has
made the work of the Committee completely bipartisan in every way.
We feel that the bill we are introducing today is not an expression of
any party position but is a matter of equal concern to both parties in-
terested in the restoration of a proper balance in our constitutional sys-
tem. For that reason, it was possible for the members of the Committee
to reach unanimous agreement.

I also wish to say that we have enjoyed the support of both the
Democratic and Republican leaders of the Senate, and they, too, have
indicated their endorsement of the bill we introduce today.

Finally, and perhaps most importantly, Senator Mathias and I met
with the* President this morning. We discussed with him the bill that
we are todav introducing. Tie was most interested, and indicated that

he favored the objective we sought and that his administration would
be prepared to cooperate with us in bringing this long period of emer-
gency government to an end so that the processes of the constitutional
system could be returned to normal.

I take great heart from the encouragement we received today at the
White House.

I think it is now possible for us to achieve a purpose that will well
serve the country. It looks as though the work of this Committee will be
crowned with success.

I express my personal gratitude to the distinguished Senator from
Maryland (Mr. Mathias) for the tremendous help he has been and
support he has given to the effort through the last 18 months.

The proposed National Emergencies Act contains four main sec-
tions. The first section would terminate the four existing declared
emergencies. The date upon which the termination takes effect would
be nine months after the date of enactment, This nine month grace
period has been included to provide sufficient time for standing com-
mittees and Executive branch departments and agencies to determine
which of the emergency statutes should be retained in the form of
permanent law. This may be necessary in a few areas such as foreign
monetary control where, over the years, the use of emergency power
has become everyday governmental practice. This nine month grace
period would permit the legislative committees and Executive depart-
ments and agencies to consider permanent legislation in the normal
legislative manner. All of the committees and all of the departments
and agencies are aware of the problem areas that affect their respective
jurisdictions and are already at work devising legislative solutions.

The next section would provide a procedure to govern the handling
of future national emergencies. The President, by proclamation, would
declare the existence of a state of national emergency. His proclama-
tion would be made public and would be published immediately in
the Federal Register. The President would specify his reasons for
declaring the emergency and the statutory powers he intended to in-
voke. The Congress would have six months to affirm or reject the Presi-
dent's use of these powers. If the Congress did not act, the declared
emergency would lapse after six months. States of national emergency
could be extended by six-month periods, but each extension would re-
quire an affirmative act of the Congress.

The third section would require an accounting of all significant
actions taken by the President pursuant to emergency powers invoked
during a declared state of national emergency.

The final section is a list of statutes to be repealed. These statutes
have been agreed upon by the standing committees and the executive
branch departments and agencies as obsolete, and they should be
stricken from the books.

The Special Committee has, on its own initiative, added one statute
to this list which the Special Committee believes poses such a serious
threat to civil liberties that it should be repealed ; 18 U.S.C. 1383 which
gives the President, the Secretary of the Army or any general the
authority to declare any part, or even all, of the United States a mili-
tary zone, within which any act he so designates may be punishable
as a crime. This provision is similar to the Alien Detention Act under

which Japanese Americans were interned during World War II. It
was repealed in 1970. In view of the Special Committee, there is no
valid reason to keep such a statute on the books.

President Ford appealed to the Congress to work with him to heal
the wounds that have developed during the past decade or more. The
record of cooperation between the Legislative and Executive branches
during the Committee's efforts to work out the problem of how to pro-
vide for expeditious action during times of war or severe crisis, and
yet do so under a constitutional framework, has been exemplary. Both
branches have worked at the task with openness and a real sense of
united purpose. The members of the Special Committee are proud to
be able to point to this final example of cooperation between the
branches.

We have had the support of several Secretaries of Defense and the
direct assistance of three Attorneys General, particularly from former
Attorney General Richardson and the present Attorney General
Saxbe. Since he took over the Justice Department, Attorney General
Saxbe has fully supported the purposes of the Special Committee and
has contributed in significant ways to the legislation which is proposed
today.

The prodigious research required to bring together the statutes and
Executive orders concerned with war or national emergency could
not have been achieved without the help of all the Executive depart-
ments and agencies. Our colleagues in the Senate should know that
without the assistance of the Air Force and its LITE computer sys-
tem, it would have been almost impossible to identify and compile all
of the statutes that are triggered by a state of national emergency. We
are especially grateful for the assistance rendered by the staff of the
Federal Register 1 whose vitally important but largely unsung work
should receive far more attention. The Special Committee owes a spe-
cial debt to the legislative reference service, particularly the American
Law Division of the Library of Congress, and to many of this country's
most distinguished political scientists and constitutional lawyers who
have given generously of their time to assist the Committee in its diffi-
cult task.

This proposed legislation also reflects the advice of former Attor-
neys General and other high officials who had occasion to use the
awesome powers contained in the emergene}* statutes.

The Constitution and the Bill of Rights represent our historic en-
deavor to restrain the power of government for the benefit of all our
citizens. In the nearly 200-year history of the American Republic, the
United States has grown huge. She is today the mightiest nation on
earth. But her glory rests not on her prowess; it rests on the freedom
that still endures.

Reflecting on the erosion of freedom brought on by recurrent emer-
gency, James Madison observed :

Those truths are well established. They are read in every page which records
the progression from a less arbitrary to a more arbitrary government, or the
transition from a popular government to an aristoeacy or a monarchy.

It is with the purpose of strengthening open constitutional processes
that we introduce the National Emergencies Act today. I urge my col-
leagues in the Senate to support this legislation and to make it the law
of the land before the end of this session.

Mr. President, I send the bill to the desk and ask unanimous consent
that it be referred to the Government Operations Committee of the
Senate.

The Presiding Officer (Mr. Taft). Without objection, it is so
ordered.

Mr. Church. Mr. President, I ask unanimous consent that the text
of the bill and the text of an interim report by the Special Commit-
tee on Xational Emergencies and Delegated Emergency Powers in
support of a recommended Xational Emergencies Act be printed in
the Record following the remarks I have made and the remarks of the
cochairman. Senator Mathias, who will now take the floor.

The Presiding Officer. Without objection, it is so ordered.

Mr. Mathias. Mr. President, the distinguished Senator from Idaho,
my colleague as cochairman of the Special Committee on Xational
Emergencies, has spoken of the bipartisan nature of that Committee.
I should like to point out that the reason why the Committee has this
unique bipartisan character is that the Senator from Idaho made it
possible. As the member of the Majority who had taken the lead on
his side of the aisle, he might well have insisted on being the partisan
chairman of a partisan committee. He did not so insist. In fact,
throughout the deliberations of our committee, on the contrary, he
has insisted that this should be a bipartisan effort. He has been fair,
considerate and constructive. I have valued very much our association
in working together on this bill.

It is characteristic of him that he has insisted upon sharing not only
the responsibility and the work, but also whatever rewards there are.

The Senator from Idaho has properly acknowledged the able help
that the Committee has had from outside sources, and I want to join
him in the thanks he has already rendered. We particularly wish to
thank those officials in the Executive branch who have been extraordi-
narily helpful to our work so that we can say that the bill we have
now introduced is not just the product of the thinking of a committee
of the Senate, but it also reflects, in a very real way. the advice and
counsel, and information and knowledge we have obtained from the
Executive branch on this problem of emergency Government, which is
of common interest to all branches of Government.

As the Senator from Idaho has said, we are irrateful for the help of
several Attorneys General — Attornev General Kleindienst, Attorney
General Richardson, and Attorney General Saxbe. But we also have
a particular debt to several Secretaries of Defense who showed a
remarkable interest in this subject and whose department, curiously
enough, was the repository of more information on this subject than
any other single source. Secretary of Defense Melvin Laird was
extraordinarily interested and cooperative, as was his successor. Secre-
tary of Defense Elliot Eichardson and the cooperation has continued
under Secretary Schlesinger and his able legal staff.

So this bill is not one which reflects only the viewpoint of Congress.
It is a bill which we have consciously designed to meet the needs of the
Executive branch. It is a bill which I think expresses a common desire
on the part of all of the branches of Government to return to a condi-
tion of government in which we are guided, day by day. in normal
times and in times of crisis by constitutional procedures.

It was, of course, particularly gratifying to have an opportunity
to discuss this measure with the President of the United States today
prior to the introduction of the bill. I was very pleased, because it was
concrete evidence of the fact that when the President came before the
joint session of Congress a week ago and said that his administration
was going to be an administration of communication, conciliation,
cooperation, and compromise, he was not just making a speech for the
momentary benefit of Congress and the public, but that he was stating
a long-term policy which he is now already carrying out. I think this
is an extremely good omen for the future.

The President, as we discussed the bill, was very quick to recognize
one salient principal of the bill: that this bill will not remove any
useful emergency power which Congress has heretofore delegated to
the Executive branch, with the exception of those particular obsolete
statutes which have been agreed upon jointly by both the standing
committees and the pertinent department or agency of the executive
branch. With the exception already noted and the group of obsolete
statutes jointly agreed upon, no statutes are proposed to be repealed.
While the statutes would go into a state of dormancy when the termina-
tion of the national emergencies takes effect, these emergency powers
are available to be used upon proclamation of need by the President
to meet any future emergency.

The President was very quick to recognize that this is the case : that
we are not proposing to diminish any proper powers of the President,
or to invade the Executive prerogative. What we are proposing is to
terminate the states of national emergency which have existed without
cease for 40 years — far too long — and we are proposing to substitute
for the haphazard and potentially dangerous procedures of the past,
regular and orderly constitutional processes by which Presidents in
the future may summon up all the powers which might be necessary
to meet crises and emergencies ; and Ave are further providing means
of oversight and that such powers may then revert to Congress when
the crisis or the emergency is over.

In doing all of this, I think we recognize that those of us who have
been elected to public office or appointed to positions of public trust
have a special duty to protect the Constitution and the liberty of all
citizens. The momentous march of events of the past four decades has
weakened our constitutional processes and our liberty is now less
secure. It is clear in looking back over 40 years that the guardians of
the Constitution have not been as vigilant as the times required. The
heavy toll of three long bloody and costly wars, a catastrophic
economic depression and the fears and tension that marked the nuclear
age and its diplomatic twin, the Cold War, has caused serious imbal-
ances in our system of open democratic government.

We, in the Congress, are witness to the destructive processes of war.
crises and emergencies. It is clear that we in the Congress, through
neglect and lack of foresight and understanding, have contributed
measurably to the weakening of constitutional government. But Ave
in the Congress have the means to take the steps necessary to strength-
en the constitutional processes that give purpose and substance to our
liberties.

The Constitution assigns legislative responsibility solely to the
Congress. Yet, for the last 40 years in most of the important areas of

public policy, many laws were conceived and actually written by the
Executive branch. As a consequence, the Congress, in far too many
instances, exercises only a limited modifying role, and in a few extreme
cases exercises a kind of reverse veto by enacting amendments which
occasionally negate Executive lawmaking initiatives. Contrary to the
authority delegated by the Constitution, the lawmaking roles of the
Congress and the Executive have been reversed.

The effects of this failure by the Congress to make the law in the full
sense intended by the founding fathers has in part contributed to the
national disasters of our time.

Yet this neglect has not yet resulted in the stifling of our freedoms,
although the warnings are many that individual liberty has been in
danger. It is not a very large step from a small illegal police force to
widespread abuse by an effective, efficient instrument of suppression. It
is not a very large step from the relatively small scale illegal break-ins,
buggings, mail covers, procurement of private records and burglaries
to the abuses of an authoritarian police state. It is very evident that
the genuine needs of our national security, have been perverted by a
process of unreviewable actions taken under the guise of national se-
curity or some similar vague incantation justifying arbitrary action
untested by the light of reason or the open processes of constitutional
government.

Our founding fathers consciously placed in our Constitution the
means to determine the real needs of the republic and laid down meth-
ods to provide for genuine national security. They also prescribed tests
by which to reject spurious claims of national security which, in truth,
have proven to be little more than cloaks for arbitrary rule. Two hun-
dred years ago the authors of the Constitution sought to frame proc-
esses by which power could be used effectively for all of the people of
the Nation. They also sought to prevent power from falling into the
hands of a few to the detriment of the majority of the people.

Constitutional processes, in my view, means the open, careful and ra-
tional husbanding of the Nation's power. It is often said that power
corrupts, but in my view, power can be used for good or for ill. Power
used bv men of good will in accord with the Constitution does not cor-
rupt. But power used by willful men outside of constitutional authority
can be corrupted, and as recent events have shown, when that happens,
the Nation suffers.

The National Emergencies Act introduced here toda}^ has been writ-
ten and conceived by Members of the Senate using the full resources
of our constitutional processes. Against the tide of accepted practice
created by the events of recent years, and through the rigorous process
of hearings, study, and debate, we have sought to restore the legislative
structure to its original constitutional dimension to provide for effec-
tive government during times of war or severe crisis. We have also
sought to assure that each of the branches can use its respective powers,
and carry out its assigned responsibilities under the Constitution, in
order to contribute to a common purpose of national security.

The rolls of history are filled with the stories of the fall of democra-
cies because of long wars or sustained crises. The fall of the Weimar
Republic and the rise of Hitler is a memory many of us share. We
seek to prevent the possibility of a repetition of that tragic chapter
from world history in the United States. In my view, our Constitution

provides the best means to remain a free people, but we in the Congress
must meet our responsibilities to make the law if that hope is to be a
lasting reality.

Over a year ago I went to see the late former Chief Justice Earl
Warren to ask his views about the philosophical questions and theo-
retical problems that crisis governments pose to our constitutional sys-
tem and the actual effects that 40 continuous years of national emer-
gency has had on the Government of the United States. I do not think it
would be a violation of his confidence if I shared the benefit of his
views with the Senate. The former Chief Justice recalled that when he
was attorney general of California during World War II, he played
a significant role in the detention of Americans of Japanese ancestry.
He explained that the deteution of Japanese Americans was in large
measure due to irrational fears generated by the pressures of World
War II.

He reflected that this incident showed that unless there were firm
statutory guidelines a crisis atmosphere can act to abridge constitu-
tional rights and processes under the exigencies of the moment, "needs
of the state," or the so-called demands of "national security." He
told me that he realized that his actions during World War II, which
had seemed necessary at the time, were in retrospect harmful to
the American constitutional system. He said that he learned from his
experience, and he went on to say that as Chief Justice of the Supreme
Court, he had tried in every way possible to strengthen constitutional
processes and particularly to protect the rights of all citizens. In that
conversation we discussed the importance of the Youngstown Steel
case, particularly the powerful remarks of Justice Jackson, which in
Chief Justice Warren's view had most thoughtfully addressed the
problem that extraordinary crisis situations such as war or severe
national depression pose for constitutional government. In essence, he
believed that Justice Jackson's views were a forceful and convincing
definition of constitutional responsibility. Justice Jackson's opinion
stressed that each branch has its responsibilities, and if each branch
fully meets its responsibilities, there would be no legal doubts con-
cerning who should "make the law" and how the laws should be
executed.

Chief Justice Warren said that while the Constitution provides that
only Congress can make the law, the legislature has the obligation
through enacting statutes to provide firm policy guidelines for the
Executive branch. The former Chief Justice agreed with Justice Jack-
son's view that where there are statutory guidelines, a President is
obliged to follow the precepts contained in the laws passed by the
Congress. Inherent powers problems arise and the other branches act,
he said, largely when Congress fails to act definitively, when it fails to
make needed laws and when there is a necessity for legislative action
and Congress fails to meet the challenge.

We then discussed the outline and the constitutional concept that lay
behind the legislative proposal to meet future national emergencies
now before the Senate. Chief Justice Warren thought it was, in prin-
ciple, a sound solution to what he recognized as a serious threat to
constitutional government.

The Special Committee is of the view that the findings of the
Youngstown Steel case so eloquently expressed by Justice Jackson, and

as confirmed in the views of the late Chief Justice Earl Warren con-
tinue to be sound. In this legislative proposal that we now recommend
to the Congress, after months of working in cooperation with the
Executive branch, we believe we have met our constitutional responsi-
bility "to make the law."

The proposed legislation now before the Senate was written in ac-
cordance with our Committee mandate : TTe have laid out statutory
guidelines which we believe will provide the Executive with the flexi-
bility and the effective power to meet any foreseeable future emer-
gency, but to do so within established constitutional guidelines and
constitutional procedures.

There were other possible courses of action to end the state of emer-
gencies. The Special Committee could have recommended an outright
repeal of the existing emergencies. This, in fact, was the initial incli-
nation of some members of the Special Committee. But after a series
of hearings, and after the staff had brought together an analysis of
the 470 statutes triggered by a state of emergency, and when the
members of the Special Committee had a fuller understanding of the
long history of emergency government in the United States and in
other nations throughout history from Greece and Rome to the
Weimar Republic, we came to the conclusion that it would be irre-
sponsible to propose a termination of the four concurrent states of
national emergency without providing a means for declaring and
terminating future emergencies. The Special Committee also decided
it was necessary to enable the Executive and the Legislative branches.
working jointly through the prescribed constitutional processes, to
make the adjustments necessary for a return to normal government.

In 1816, Thomas Jefferson wrote to his friend Joseph C. Cabell.
the cofounder with President Jefferson of the University of Virginia.
of his growing concern that political power not fall into the hands of
one man or a determined group of just a few men. He wrote:

Xo. my friend, the way to have a good and safe government, is not to trust it
all to one, but to divide it among the many, distributing to everyone the functions
he is competent to.

Jefferson, in his letter to Cabell goes on to ask —

What has destroyed liberty and the rights of man in every government which
has ever existed under the sun?

Jefferson's answer was short and explicit :

The generalizing and concentrating of all cares and powers into one body.

It is with Jefferson's admonition in mind that I urge the Senate to
exercise "the function it is competent to" — to make the law and enact
this proposal to strengthen our government of laws.

That. Mr. President, is why I am particularly pleased with the con-
versation we had this morning with the President of the United States
who is supporting, in principle, the concepts that are embodied in the
bill which the Senator from Idaho (Mr. Church) and I have now in-
troduced on behalf of every member of the Special Committee, has also
recognized that they reflect enduring constitutional principles which
have been a part of our Government since the founding of the Re-
public, and which have been respected and recognized by the great
Presidents of the Republic in every age.

[Text of S. 3957]

[Text of Interim Report — A Recommended National Emergencies Act]

NEED FOR EMERGENCY POWERS LEGISLATION

Mr. Pearson. Mr. President, I am proud to join with my colleagues
on the Special Committee on the Termination of the National Emer-
gency in sponsoring the National Emergencies Act. This bill is the
product of a careful review of a President's emergency powers by a
unique bipartisan committee.

In a very real sense, Mr. President, this bill complements other
efforts which this Congress has taken to reinstate constitutional gov-
ernment as it was intended to function. We moved in Public Law
93-148, the War Powers bill, toward a reassertion of the right of
Congress to declare war. In the budget reform measure, we reasserted
the right of Congress to control government expenditures.

The National Emergencies Act, and these other laws, do not at-
tempt to eliminate necessary and essential Executive powers which
our country grants its President. Certainly there is a need for a Presi-
dent to operate, on his own initiative, with speed and efficiency in the
face of a national crisis. However, I believe that excessive power in
the hands of any one man is both undesirable and alien to our sys-
tem of government.

During the past year and a half, all of us on the Committee have
learned a great deal about the extent of the powers which a Presi-
dent may exercise during a "national emergency.'' With the aid of a
highly professional and competent staff, we have compiled a list
of statutes and Executive orders detailing the precise nature of this
authority. After reviewing this list, I was amazed at the extent to
which Congress has delegated special powers to a President who
deems that the United States is facing an emergency.

My concern was increased when I realized that Congress bears a
large share of responsibility for the steady accretion of emergency
power. "While Presidents can and have unilaterally declared that states
of emergency exist, Congress has given them means to exercise ex-
traordinary powers during these times. Thus, Harry Truman's declara-
tion of a national emergency in 1950 had a major psychological im-
pact. However, laws passed by Congress, such as the Defense Produc-
tion Act, provided the legal basis for most of his subsequent actions.

There are nearly 500 such laws still on the books. Each law gives any
President special powers during a "national emergency," during times
of war, or when he deems that "war is imminent." The 1950 Emergency
Proclamation, and three others are still on the books. As a result, each
and every one of the Congressional delegations of power is today
available for use by a Chief Executive.

Even more amazing than the number of laws granting special power
to the President is the fact that there is no mechanism for reviewing
or revoking these laws once they are no longer needed. Unlike inherent
Presidential powers which can be reviewed by the Supreme Court,
emergency powers are specific legal delegations of authority to a Presi-
dent. The Supreme Court has generally given deference to such dele-
gations of authority. The laws are viewed as persuasive evidence of

Congressional intent that the President should be permitted special
latitude during crises. Thus, unless the Congress itself imposes con-
trols, emergency powers may remain largely unchecked.

For this reason, the bill sponsored by the Special Committee is a
carefully measured step toward reimposition of Congressional control.
First, the bill suspends the existing authority of a President to utilize
the laws granting him powers during a national emergency. After
placing these laws on a "shelf," we also require future Presidents to
specify the powers which they wish to use once an emergency has
been declared. I believe that this is preferable to permitting the
President to choose his actions from a large residuum of unorganized,
undefined, and often outdated legislative grants of authority.

Second, the bill imposes time limits on any future declaration of
emergency. Xo emergency is effective beyond six months, unless speci-
fically extended by Congress. This requires Congress to review any
declaration of emergency and thereby imposes a degree of responsi-
bility on Congress.

Also, the bill proposes the repeal of existing emergency status which
the Committee and the Administration have agreed are no longer
needed.

This bill is an important piece of legislation. Although it does not
and cannot foresee every eventuality, it will interject a degree of
thoughtful oversight over Executive decisionmaking.

Mr. President. I recently outlined in greater detail my thoughts on
this matter in article published in the Wichita Eagle on August 18. I
ask unanimous consent that the article be printed at this point in the
Pecord.

[There being no objection, the article was ordered printed in the
Record, as follows:]

The President's Power

(By James B. Pearson)

Since 1950. any President of the United States, without prior consultation with
Congress, has had the power to :

Order a federal take-over of all Wichita aircraft plants and other defense-
related industry.

Declare the cities of Omaha and Colorado Springs to be military zones because
of their sensitive defense facilities, and order the arrest of anyone entering or
leaving these areas.

Regulate radio and wire communications, including Western Union, news agen-
cies such as the Associated Press and United Press international.

Close the New York Stock Exchange, suspend all currency trading, after cus-
toms and import duties, and control shipping and rail transportation facilities.

Xo one seriously expects that in the absence of a major national or world
upheaval that an American President would act so capriciously as to impose
these Draconian measures. But the significant point is that a President could
legally take these and ninny other even more sweeping action because since 1933
the United States has been technically and legally in a state of national
emergency.

To most Americans, the idea of giving a President special powers when the
future of the nation is at stake is not particularly frightening. We have often
relied on a strong Executive to act quickly. This has been particularly true in time
of war.

Most people do not realize, however, that a President can declare a national
emergency on his own in peace time. There is no firm, legal requirement that our
lives or property be clearly threatened before such a declaration is made.

This is true because a President, drawing upon a reservoir of strength from
his position as commander-in-chief of the armed forces, and as Chief Executive

may perceive the need for special action or unusual decisions and thus proclaim
a national emergency.

The debate over the actual extent of the President's power in this area has
raged for years. The issue has never been settled. Some Presidents have gener-
ously interpreted their power to declare national emergencies.

For example, in 1970 President Nixon declared a national emergency in re-
sponse to a wildcat strike of postal employes in New York and Chicago. He
declared that adequate postal service was important to the well being of the
nation.

The strike, he argued, could hinder the processing of men into the armed
forces and impair tax collections and the distribution of social security and
welfare payments. Following his statement, the President activated some Armed
Forces Reserve units to begin distributing the mail in New York City.

Actually, these emergency proclamations have little effect standing alone. Their
significance lies in the fact that they serve to activate hundreds of laws passed
by Congress over the years delegating special authority to the President in times
when national emergencies are in effect. These special laws can be triggered
simply because a proclamation of emergency, possibly declared years ago, has
never been technically revoked.

Congress has shown little reluctance in passing such laws. Time after time,
when faced with crisis situations. Congress has handed the President, often with
unseemly haste, special powers on a silver platter. While the President should
assume leadership in a crisis, the Congress has often failed to consider the long
run consequences of its actions.

The lack of careful thoughtful review in granting these special powers was
demonstrated in 1933. At that time, Franklin Roosevelt submitted an emergency
banking bill to Congress. No member of the House or Senate had copies of the
measure. It was passed after 38 minutes of debate. It approved actions the Presi-
dent had already taken.

Unfortunately, this incident is not unique. If we were to add up all Congres-
sional grants of power it would not be an exaggeration to say that the ground-
work had been laid for a legal dictatorship.

The need for a serious, careful review of national emergency powers has be-
come increasingly apparent in the last few years. And in 1973 the United States
Senate established a Special Committee to study these extraordinary powers. I
have been privileged to serve as a member of this Special Committee on the
Termination of the National Emergency.

When our Committee first began examining the question of the national emer-
gency, it quickly became apparent that our first task was to identify the existing
proclamations of emergency and to catalog all special laws that could be used
when emergencies are in effect. No one really knew the full scope and nature
of emergency powers.

We learned that the four national emergencies declared in the last 40 years
have never been repealed. In 1933 President Roosevelt issued an emergency dec-
laration dealing with the Depression. Harry Truman's emergency proclamation
in 1950 provided basis for our involvement in Korea. President Nixon declared
an emergency in 1970 to deal with a postal strike. He proclaimed another emer-
gency in 1971 relating to international economic problems.

Then with the help of Air Force computers, the Committee compiled a list of
more than 470 federal statutes which can be activated while emergencies are
in effect. Some date back to the 1800's. They have never been coordinated. They
are not organized in any special manner. All 470 are in effect today.

In addition to these laws, Presidents have issued countless Executive orders,
proclamations, and directives. These generally have all the force of law if based
upon a specific Congressional delegation of authority. Many of these rulings are
not published for review by Congress or the public.

Each of these laws and Executive orders had legitimate objectives at the time
of enactment. But over the years they have often been used in ways never
imagined by the original authors.

In addition to the rather dramatic possibilities listed in the opening paragraph,
there are several actual incidents of Presidents using emergency laws of another
era to justify their actions.

For example, in 1917 Congress passed a law prohibiting trading with Germany,
section 5(b) of the* "Trading With the Enemy Act" gives the President very
broad economic powers during the time of war or during any other period of
national emergency. This is still "good law" because of the 1950 emergency.

Thus in 1968. President Johnson, wishing to control the foreign investments of
U.S. companies to alleviate the balance of payments crisis, issued an Executive
order based on powers granted by the "Trading With the Enemy Act of 1917.

In 1950, Congress passed the Defense Production Act giving a President wide-
ranging powers to control the production of materials needed for national de-
fense in connection with the Korean War. Its language is broad enough to permit
the President to order government possession of a plant which refuses to manu-
facture a specified kind or quantity of material.

As late as 1966, this Act was used to fill a Department of Defense order for 3
million tropical uniforms for use in Vietnam. Also, in the fourth quarter of 1966,
the President relied on the law to require steel producers to set aside six percent
of their output for defense. Eighteen percent of copper and thirteen percent of
aluminum production also was ordered to be set aside for defense purposes.

Several Presidents have, also, relied upon the Feed and Forage Act of 1861.
This bill was passed during the Civil War to give the Army authority to obtain
feed and cavalry forage when Congress was not in session.

Today, this act still permits the armed services to use deficiency spending to
obtain clothing, subsistence, fuel, quarters, and other supplies. I think these needs
should be met. However, the law has also been used to finance American Ma-
rines in Lebanon in 1958, to support the Berlin mobilization in 1962, and to
maintain troops in Southeast Asia.

I do not suggest that these actions are evil, dictatorial, or even unneeded. But
I am persuaded that all the emergency powers, when taken together, give future
Presidents an unacceptable range of discretionary power. To say that a con-
temporary President would not likely abuse emergency power available to him
is no guarantee that some future President under unforeseen conditions might
not do so.

But of equal or more importance than the possibility of the outright abuse of
power is the fact that in exercising emergency authority, even in a legitimate
and proper way, the President makes policy decisions which should be properly
shared with the Congress.

Because of the existence of these broad emergency powers, even the best in-
tentioned of Presidents is tempted from time to time to take the quick, easy
route of issuing Executive orders rather than coming to Congress with a request
for statutory authority to deal with the problem at hand.

This is, of course, not always possible. But if we are to maintain a proper
balance of power over the long haul, we must continually be on the alert to pre-
vent the unnecessary exercise of Presidential power and the undesirable decline
of Congressional authority.

No one suggests that the President should be denied the use of emergency
powers. Congress cannot always move with the necessary speed to deal with
crisis situations. The real question is not whether the President should have
emergency powers, but how extensive they should be and how they should be
controlled to assure proper accountability and to prevent possible abuse.

Congressional review is essential to checking the steady growth and accumu-
lation of Presidential emergency powers. We must insist upon our role to oversee
the use of these and to terminate them when conditions are proper.

One means of instituting stricter Congressional controls is to limit the length
of emergency grants of power.

The British have learned this lesson. During World War II. Parliament
granted massive powers to the prime minister and his cabinet. Britain appeared
to be a totalitarian state. However. Parliament, also, retained the right to re-
view and terminate the special authority. This grant of powers had to be renewed
annually by Parliament. Parliament never lost control of its ultimate right to
review and revoke emergency powers.

The U.S. Congress is finally beginning to impose time limits on the granting
of special powers. The Economic Stabilization Act. which gave the President the
power to invoke wage and price controls, was allowed to lapse on April 30. 1974.

Also, during debate on emergency energy legislation last winter, Senator
Church sought to include specific time limits in the grants of power given to the
President. Because of the work of our Committee, we were able to convince the
Senate to limit the delegation of emergency energy authority to one year.

After long and careful study, the Special Committee to Terminate the National
Emergency has now prepared and submitted to the Senate legislation which we
believe effectively deals with the question of controlling the use of emergency
powers.

66-474 O - 76 - 7

Our bill proposes to terminate, after nine months, the effectiveness of all
powers given to the President by law as the result of any national emergency cur-
rently in effect. The 470 laws, which we mentioned earlier, would in effect be
''placed on a shelf for use during future national emergencies."

Outdated or unnecessary laws would be repealed.

Under the bill, the President could in the future, declare a national emergency,
But, along with his declaration, he would have to inform Congress precisely
which powers "on the shelf" he wishes to use during the emergency. In case of
war, the president could use any emergency statute on the books.

The bill also specifies that any declared emergency will be automatically
terminated within six months unless extended by Congress. Congress may, also,
end the emergency before the six months expire. If the need for special Executive
powers continues beyond six months, a President may declare another emergency.
These subsequent declarations would also be subject to Congressional approval.
During a war, the powers would remain effective until the war was terminated in
accordance with constitutional processes.

The bill also requires the President to maintain a file and index of all Executive
orders or any other directives he issues. Copies of the orders must be given to
Congress. The security of these rulings is protected if they contain confidential
information.

This bill is not the perfect answer to all of our questions. A devious President,
if he could withstand the political pressure, might wait several days after the
expiration of each emergency prior to announcing a new one.

Congress could also refuse, out of spite or for political reasons, to approve
legitimate measures needed to protect the Nation. Nevertheless, the bill does im-
pose significant new restrictions on the unfettered use of emergency powers.

This bill, if approved by Congress and signed by the President, will impose a
measure of Congressional restraint and oversight in Executive powers which
have fast become unmanageable. Its adoption would in no way cripple the Presi-
dent's ability to contend with genuine emergency conditions.

It does represent a step toward reinstituting constitutional government as I be-
lieve it was intended to function. It is a major piece of legislation. It should
be adopted.

Mr. Stevensox. Mr. President, two weeks ago, the Constitution pro-
vided for an orderly transition in the Presidency.

Today, the Special Committee on National Emergencies and Dele-
gated Emergency Powers on which I am privileged to serve is report-
ing the National Emergencies Act. That act is intended to assure
that in our democratic system of government the President's power
does not exceed the power he derives from the Congress and the
Constitution.

The National Emergencies Act provides for :

First, the termination of the present status of "national
emergency" ;

Second, a procedure for the declaration of emergencies and their
termination ;

Third, public disclosure of action taken pursuant to emergency
power statutes; and

Fourth, repeal of existing emergency power laws.

Four Presidentially proclaimed states of national emergency are
now in effect, Without the consent of Congress, the President can,
among other things, seize property, organize and control means of
production, assign military forces abroad, declare martial law, restrict
travel and control all means of transportation and communication. A
President can manage the lives of every American citizen by decree.

Only a few of the President's emergency powers are being used
which is evidence in itself that an "emergency" no longer exists.

The National Emergencies Act is the result of more than two years
of hearings and research by the Special Committee on National Emer-
gencies and Delegated Emergency Powers.

This act will safeguard our constitutional balance of powers, if en-
acted. But it cannot be enacted without the approval of the President.
The Congress cannot reclaim its constitutional powers without the
President's consent.

President Ford has moved brilliantly, but symbolically, to redress
the imbalance of power. I commend him. and I urge him and the Con-
gress to now act by supporting this legislation.

Mr. Hansen. Mr. President, I would like to take this opportunity to
direct my remarks to a bill which the Special Committee on National
Emergencies and Delegated Powers of which I am a member, recently
reported. It is my understanding this bill will be referred to the Com-
mittee on ( rovernment ( Operations.

It Ls my feeling this bill offers a correct approach to restricting the
Executive branch's power to declare a national emergency by giving it
sufficient power to declare a national emergency when the "preserva-
tion, protection, and defense of the Constitution, and . . . the common
defense and -a fety of t he territory and people of the United States"" so
require it. Few would argue the need under these circumstances lor im-
mediate act ion. which many times ( Congress is unable to provide due to
the majority consensus required.

The source of nat tonal emergency power is derived mainly from dele-
gat ion of Congressional power to"mak( all laws."" There has not been
an usurpal ion by t lie Execut ive of ( 'ongress' power but rather there has
been an authorized delegation. The appearance of excess and uncon-
t rolled power of the Presidenl to declare a national emergency through
an Executive order has stemmed mainly from failure to publish in tin 1
Federal Register document.- which are in fact Executive orders and
proclamations but which have not been formally prepared.

('ongress has failed to specify substantive standards, which would
require the record at ion of all documents in the above class. The statutes
from which the power to declare a national emergency are incorporated
have in many cases been obscured and the President has been able to
draw this source of power from laws which were generally unknown.
A- a result of the Committee staff's work, approximately 17" statute-
have been located which contain authority for t he Presidenl from Con-
- to declare a national emergency, ruder the bill. 470 statutes
would remain dormant until t he Presidenl specified which he wishes to
become act ive at the time when emergency conditions arise. If Congr<
takes no action on the President's request within six months, the na-
tional emergency will lapse. Congress could extend the emergency past
six months if desired. The bill would also end the four existing states
of national emergency and repeal laws that both the Executive and
Congress believe to be obsolete.

It is my feeding this bill has updated and coordinated the existing
statutory authority for declaring a national emergency. It has set rea-
sonable restrictions upon the use of this authority without restricting
it beyond practicability. Congress has reclaimed its right to make all
the laws by restricting the Executive's power to declare a national

emergency. Yet the Executive still retains the right under the 470
statutes to declare a national emergency in the face of an emergency.

Mr. Pell. Mr. President, the National Emergencies Act of 1974, in-
troducd today by Senators Church and Mathias and cosponsored by all
the members of the Special Committee on Xational Emergency Powers,
including myself, is an unprecedented and crucial piece of legislation.
This legislation is the product of 20 months of study and work by the
Special Committee, particularly the cochairman and the staff.

It is ironic, Mr. President, that the Special Committee was examin-
ing the question of national emergencies and emergency powers during
the same period in which the American people were becoming acutely
concerned about the extent and use of Presidential power in our sup-
posedly balanced system of Xational Government.

In view of the continuing national reexamination of the proper
roles of the Executive and Legislative branches of that Government,
it is particularly appropriate that the Special Committee should come
forward with this legislation today.

The Xational Emergencies Act of 1974 simply but effectively fulfills
the mandate of the Special Committee when it was created in the 92d
Congress. It provides for the termination of the four states of na-
tional emergency which continue in effect in our country.

In place of those four states of national emergency, the legislation
would establish what I believe to be an effective and responsible mech-
anism for dealing with future national emergencies.

Under the system proposed in this legislation, the Chief Executive
would have available to him the power to declare a national emer-
gency and to call into effect those powers which are necessary to deal
quickly and effectively with the emergency situation.

But, unlike past practice, the Congress would reserve its proper role
of examining and judging the rectitude of the Chief Executive's ac-
tions. There is also the clear recognition that such emergencies are
temporary in nature and that the states of emergency should not :oiv
tinue beyond the end of the emergency situation.

Mr. President, I believe that action by the Congress to correct the
inaction of the last 41 years, regarding emergencies and emergency
powers, is long overdue." Senators Church and Mathias are to be com-
mended for bringing this problem to the fore and for the thorough- 1
ness of their study of the many facets of these questions.

I hope that speedy action can occur on this legislation both in the
Senate and in the House so that we can restore — at least in this one :
crucial area — the balance that the framers of the Constitution so
wisely constructed.

The Presiding Officer. The Senator from Idaho.
Mr. Church. Mr. President, I simply want to join with the distin-
guished Senator from Marvland (Mr. Mathias) in expressing my own
appreciation for the attitude shown by President Ford this morning.
I think his recognition of the need to end emergency government and
to restore normal Government is not only very encouraging to those
of us who have worked long and hard on this Committee, but it makes
this dav a promising one for the Republic.

Mr. President, I would like to ask unanimous consent that the name
of the distinguished Senator from Florida (Mr. Chiles) be added as
a cosponsor to the bill we have introduced today.

The Presiding Officer (Mr. Helms). Without objection, it is so
ordered.

Mr. Church. Mr. President. I now suggest the absence of a quorum.

The Presiding Officer. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. Chiles. Mr. President. I ask unanimous consent that the order
for the quorum call be rescinded.

The Presiding Officer. Without objection, it is so ordered.

TEXT OF S. 3957, 93rd CONGRESS

A BILL To terminate certain authorities with respect to national emergencies still In
effect, and to provide for orderly implementation and termination of future national
emergencies

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That this Act may be cited as the
"National Emergencies Act".

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES

TERMINATING POWERS AND AUTHORITIES

Sec. 101 (a) All powers and authorities conferred by law upon the President,
any other officer or employee of the Federal Government, or upon any depart-
ment, agency, independent establishment, or any other body of the Federal
Government, and all powers and authorities conferred by any Executive order
pursuant to law as a result of the existence of any national emergency in ef-
fect immediately prior to the two hundred and seventy-first day after the date
of enactment of this Act, are terminated on such two hundred and seventy-first
day.

(b) For the purpose of this section, the words "any national emergency in
effect" means a general declaration of emergency made by the President pur-
suant to a statute authorizing him to declare a national emergency.

TITLE II— FUTURE NATIONAL EMERGENCIES

Sec. 201. (a) In the event the President finds that the proclamation of a na-
tional emergency is essential to the preservation, protection, and defense of
the Constitution, and is essential to the common defense, safety, or well-being
of the territory and people of the United States, the President is authorized to
proclaim the existence of a national emergency. Such proclamation shall there-
upon be made public, and shall be published immediately in the Federal Register.

(b) Any provisions of law conferring powers and authorities to be exercised
during a national emergency shall be effective and remain in effect with respect
to national emergency (1) only wherv the President (in accordance with sub-
section (a) of this section), specifically declares a national emergency, and (2)
only in accordance with this Act. No law enacted after the date of enactment
of this Act shall supersede this title unless it does so in specific terms, referring
to this title, and declaring that the new law supersedes the provisions of this
title.

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec 301. Whenever Congress declares war, any provisions of law confer-
ring powers and authorities to be exercised during time of war or a national
emergency shall be effective from the date of such declaration and remain in
effect only in accordance with the provision of Title IV of this Act.

TITLE IV— FUTURE NATIONAL EMERGENCIES

EXERCISING EMERGENCY POWERS AND AUTHORITIES

Sec 401. (a) When the President declares a national emergency, or Con-
gress declares war, any provision of law conferring powers and authorities to
be exercised during such a national emergency or during a war declared by the
Congress shall be effective and remain in effect with respect to such emergency
or war only in accordance with this Act.

(b) When the President declares a national emergency, no powers made
available by statute for use in the event of an emergency shall become operative

(92)

unless and until the President specifies by Executive order the specific provisions
of law under which he proposes that he, or other officers of the Executive branch,
will act. Such specification may be made either in the original declaration of a
national emergency, or by subsequent order, but no power granted in the event
of the declaration of a national emergency shall be available unless or until it
has been so specified by the President. All such specifications shall be published
immediately in the Federal Register, and a copy of any declaration of national
emergency, and of such specifications, shall be transmitted immediately to
Congress.

LIMITATIONS OX NATIONAL EMERGENCIES DECLARED BY PRESIDENT

Sec 402. Any national emergency declared by the President in accordance
with this title shall terminate at the end of the one hundred and eightieth day
after the date the national emergency was declared, and any of the provisions
of law referred to in section 401(a) of this Act shall not be effective after the
end of such one hundred and eightieth day unless Congress by concurrent
resolution —

(1) terminates such emergency on an earlier date ; or

(2) continues such emergency to a day specified in the concurrent resolu-
tion, beyond the end of such one hundred and eightieth day.

Any national emergency declared by the President shall then be terminated on
the date specified in any such concurrent resolution referred to in clauses (1)
and (2) of this section, and any such provisions of law shall not be effective
after such specified date with respect to that emergency.

TERMINATING AND CONTINUING NATIONAL EMERGENCIES AND WARS

Sec. 403. (a) In no event shall any provision of law referred to in section 401
(a) of this Act remain in effect beyond the end of the one hundred and eightieth
day following the date of the declaration of the emergency or war unless, in the
case of ;i declaration of war by Congress, if such declared war has not been
terminated in accordance with constitutional processes.

(b) The provisions of sections 401 and 402 of this Act and subsection (a) of
this section shall apply to any subsequent declaration of a national emergency
or war made with respect to the same emergency or war under subsection (a)
of this section.

TITLE V— MISCELLANEOUS

ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE PRESIDENT

Sec 501. (a) When the President declares a national emergency, or Congress
declares war. the President shall be responsible for maintaining a file, and an
index thereof, of all Executive orders by the President, including all instances
of the exercise by the President of any power conferred on him by statutes and
the Constitution : all rules and regulations, by whatever name called, promulgated
by any Executive department, administration, independent establishment, board,
commission, official, group of officials, or other rulemaking authority : and all
other rules, regulations, orders, by whatever name called, made directly or in-
directly under the expressed or implied authority of the Constitution or any
Act of Congress with respect to the declarations of national emergency or war.
The President shall transmit to the House of Representatives and the Senate
and to the appropriate committees of the Congress the texts of each order, rule,
or regulation, by whatever name called, promulgated by any Executive depart-
ment, administration, independent establishment, board, commission, official,
group of officials, or other rulemaking authority ; and all other orders, rules.
and regulations, by whatever name called, made directly or indirectly under
expressed or implied authority of the Constitution or any Act of Congress with
respect to the declaration of national emergency or war, as soon as practicable
after that order, by whatever name called, has been issued.

Cb) Any such order, rule, or regulation which conforms with procedures estab-
lished by law, shall be transmitted to the House of Representatives and the
Senate and to the appropriate committees of Congress under means to assure its
proper confidentiality.

TITLE VI— REPEAL OF CERTAIN EMERGENCY POWER STATUTES

Sec. 601. Except with respect to the rights and duties that matured, penalties
that were incurred, and proceedings that were begun, prior to the date of enact-
ment of this Act, the following provisions of law are repealed :

(7 U.S.C.

1741)

(7 U.S.C.

1742)

(7 U.S.C. 1743)

(7 U.S.C. 1744)

(7 U.S.C. 1745)

(7 U.S.C. 1746)

(7 U.S.C.

1747)

(8 U.S.C.

1481(a) (10))

(10 U.S.C.

2667(b)(4))

(10 U.S.C. 4025)

(10 U.S.C. 9025)

(12 U.S.C.

95)

(12 U.S.C.

95(a))

(12 U.S.C.

249)

(12 U.S.C. 1703)

(12 U.S.C.

1705)

(12 U.S.C.

1748b (a))

(16 U.S.C.

831d(m))

(18 U.S.C. 1383)

(26 U.S.C.

168)

(41 U.S.C.

101)

(41 U.S.C.

102)

(41 U.S.C.

103)

(41 U.S.C.

104)

(41 U.S.C.

105)

(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(41 U.S.C.
(42 U.S.C.
(42 U.S.C.
(50 U.S.C.
(50 U.S.C.

106)
107)
108)
109)
110)
111)
112)
113)
114)
115)
116)
117)
118)
119)
120)
121)
122)
123)
124)
125)
211b)
1592)
9(e))
App. 1742).

Calendar No. 1136

93d Coxgress ) SENATE ( Report

2d Session f 1 No. 93-1193

{

NATIONAL EMERGENCIES ACT

September 30, 1974. — Ordered to be printed

Mr. Ervix, from the Committee on Government Operations,
submitted the following

l to

REPORT

[To accompany S. 3957]

The Committee on Government Operations, to which was referred
the bill (S. 3957) to terminate certain authorities with respect to na-
tional emergencies still in effect, and to provide for orderly imple-
mentation and termination of future national emergencies! having
considered the same, reports favorably thereon without amendment
and recommends that the bill do pass.

Purpose

The purpose of S. 3957 is to end the four states of national emer-
gency currently in force and to provide for a procedure for meeting
future emergencies which will assure the operation of Constitutional
processes.

In order to carry out this purpose the National Emergencies Act
would :

(1) Terminate the four states of national emergency now in
force ;

(2) Provide for automatic termination of future national emer-
gencies after six months unless extended by Congressional action;

(3) Provide for Congressional oversight of and accountability
for actions taken by the Executive in the exercise of delegated
emergency powers ; and

(4) Repeal specific obsolete emergency powers statutes.
Four states of national emergency are now in force. The national

emergency declared by President Roosevelt on March 6, 1933. to meet
the crisis of the depression has not been formally terminated.

The national emergency declared on December 16, 1950, by Presi-
dent Truman to mobilize the country for the Korean War, is still in
effect.

The national emergency declared by President Nixon on March 23,

1970, to cope with the Post Office strike, has not been terminated.
The national emergency declared by President Nixon on August 15,

1971, to implement currency restrictions and to enforce controls on
foreign trade remains in effect.

The termination of the existing states of emergency would take
effect nine months after the date of enactment of this bill. This nine-
month grace period is provided to enable the Executive branch to make
legislative proposals for the small body of "emergency" powers that
have become everyday functions of the government, with enough time
to obtain enactment through normal legislative processes.

The second section of the bill provides for regular and consistent
procedures by which emergencies can be met in the future. The defini-
tion of an emergency has been deliberately cast in broad terms that
makes it clear that a proclamation of a state of national emergency
requires a grave national crisis. In the event of such a crisis, the Presi-
dent, by proclamation, would declare the existence of a national emer-
^oncy. The proclamation of the President would be immediately made
public and published in the Federal Register. In his proclamation
the President would specify his reasons for declaring the emergency
and the statutory powers he intended to invoke. The delegation of
authority would take effect immediately upon public notification by
the President. Any time within the next six months, the Congress could
affirm or reject bv Concurrent Resolution the President's use of these
powers. If the Congress did not act, the declared emergency would
lapse after six months. Proclaimed states of national emergency could
be extended for six-month periods but each extension would require an
affirmative act by the Congress and be limited to six months.

The third section of the bill would require an accounting of all sig-
nificant actions taken by the President pursuant to emergency powers
invoked during a declared state of national emergency. This section
is intended to provide the means for effective Congressional oversight
of the executive branch's use of statutory delegated emergency powers.

The final section of the bill is a list of statutes to be repealed. The
Standing Committees and the Executive branch departments and
agencies have agreed that these statutes are obsolete and should be
stricken from the books.

History of Legislation

The National Emergencies Act was introduced by the Senate Spe-
cial Committee on National Emergencies and Delegated Emergency
Powers on August 22, 1974. The Act was sponsored by Senators
Church, Mathias, Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin,
Chiles, Williams. Muskie, Javits, Ribicoff, and Roth.

The National Emergencies Act is the result of almost two years of
hearings, investigations and studies conducted bv the bipartisan spe-
cial committee under the co-chairmanship of Senator Church and
Senator Mathias and whose other members are Senators Hart, Case,
Pell, Pearson, Stevenson and Hansen. The Special Committee had its

origins in the final months of the 92nd Congress, when considerable
interest was expressed within the Senate in determining with pre-
cision what emergency powers were available to the Executive. With
the opening of the 93rd Congress, there was established, on January 6,
1973, a Special Committee on the Termination of the National Emer-
gency. The mandate of the Special Committee, as expressed in its au-
thorizing resolution (S. Res. 9), was "to conduct a study and in-
vestigation with respect to the matter of terminating the national
emergency proclaimed by the President of the United States on
December 16, 1950, as announced in Presidental Proclamation Num-
bered 2914, dated the same date."

It was soon discovered that more than one proclamation of national
emergency was in effect •; in fact, there are four such instruments, issued
in 1933, 1950, 1970 and 1971, now in force. After examining the U.S.
Code and uncodified statutory emergency powers, the Special Commit-
tee identified over 470 provisions of Federal law in effect which dele-
gate extraordinary authority in time of national emergency to the
Executive.*

The Special Committee discovered that there was no consistent
procedure for declaring, administering or terminating states of na-
tional emergencies. The Special Committee, therefore, worked on two
main tasks. First, to explore how existing states of national emergency
could be terminated with the least adverse effects. There were three pos-
sible approaches: (a) outright repeal of all emergency statutes, (b)
relegating all emergency provisions to a state of domancy to be used in
future emergencies, or (c) maintaining emergency provisions in the
United States Code but for use only in states of emergency declared in
accordance with regular and consistent procedures which would pro-
vide for termination and oversight.

Professor Eobert S. Rankin, Emeritus, of Duke University, Pro-
fessor Cornelius P. Cotter of the University of Wisconsin, and Pro-
fessor J. Malcolm Smith of California State University, all renowned
scholars of the subject of emergency powers, testified in hearings held
by the Special Committee on April 11, 1973. Since that time they have
continued to advise the Committee on particular constitutional and
legal questions concerned with emergency powers.

♦See U.S. Congress, Senate — Special Committee on the Termination of the National
Emergency : Emergency Powers Statutes : Provisions of Federal Law Now in Effect Dele-
gating to the Executive Extraordinary Authority in Time of National Emergency, Wash-
ington, U.S. Govt. Print. Off., 1973 (93d Congress, 1st session, Senate Report No. 549)
607 pages ; see also, Executive Orders in Times of War and National Emergency, Wash-
ington, U.S. Govt. Print. Off., 1974 (93d Congress, 2d session), 283 pages.

The Dean of the Georgetown University Law Center, Professor
Adrian S. Fisher, testified on the circumstances surrounding the decla-
ration of the 1950 national emergency. His testimony was particu-
larly useful because Professor Fisher was an advisor to Harry Truman
at the time the emergency was declared. Dr. Gerhard Casper, Professor
of Law and Political Science at the University of Chicago, testified on
the constitutional questions involved in Executive use of emergency
powers, comparing the experiences of other democratic states, particu-
larly those of the Weimar Republic.

The Special Committee has had the benefit of the full cooperation
and assistance of three successive Attorneys General: Kleindienst,
Richardson and Saxbe, respectively, as well as three Secretaries of
Defense and the Office of Management and Budget.

In addition, the Special Committee called upon former Attorney
General of the United States and Associate Justice of the U.S. Su-
preme Court (retired) Tom C. Clark, former Attorney General
Nicholas DeB. Katzenbach, and former Attorney General Ramsey
Clark for their perspectives on emergency powers from the vieAvpoint
of the Justice Department and the Supreme Court. Just prior to his
death, the late Chief Justice of the Supreme Court Earl Warren in-
formally provided to the Committee counsel based upon his long ex-
perience and life in the law. As reported by Senator Mathias in a
speech to the Senate on August 22, 1974 :

Chief Justice Warren said that while the Constitution pro-
vides that only Congress can make the law, the legislature has
the obligation through enacting statutes to provide firm
policy guidelines for the Executive branch. The former Chief
Justice agreed with Justice Jackson r s view that where there
are statutory guidelines, a President is obliged to follow the
precepts contained in the laws passed by the Congress. In-
herent powers problems arise and the other branches act, he
said, largely when Congress fails to act definitely, when it
fails to make needed laws and when there is a necessity for
legislative action and Congress fails to meet the challenge.

We then discussed the outline and the constitutional con-
cept that lay behind the legislative proposal to meet future
national emergencies now before the Senate. Chief Justice
Warren thought it was, in principle, a sound solution to what
he recognized as a serious threat to constitutional government.

Following his resignation as Attorney General of the United States,
Elliot Richardson presented his views to the Special Committee as did
former Solicitor General Erwin N. Griswold.

On the basis of these hearings, contained in three volumes issued as
committee reports, consultations with every department and agency of
the Executive branch, the Federal Register and consultation with
many distinguished legal scholars in the Executive branch, in the
Library of Congress and in numerous universities and law schools, the
Special Committee drew up legislation making use of many of the sug-
gestions of these persons and the witnesses who had appeared before
Committee hearings. The Special Committee took as a basic guideline
the opinion of the Supreme Court in the Youngstown Steel Case,

particularly that portion of the concurring opinion given by Justice

Jackson :

The appeal, however, that we declare the existence of in-
herent powers ex necessitate to meet an emergency asks us to
do what many think would be wise, although it is something
the forefathers omitted. They knew what emergencies were,
knew the pressures they engendered for authoritative action,
knew, too, how they afford a ready pretext for usurpation.
We may also suspect that they suspected that emergency pow-
ers would tend to kindle emergencies. Aside from suspension
of the privilege of the writ of habeas corpus in time of rebel-
lion or invasion, Avhen the public safety may require it, they
made no express provision for exercise of extraordinary au-
thority because of a crisis. I do not think we rightfully may
so amend their work, and, if we could, I am not convinced it
would be wise to do so. although many modern nations have
forth rightly recognized that Avar and economic crises may
upset the normal balance between liberty and authority.
Their experience with emergency powers may not be irrele-
vant to the argument here that we should say that the
Executive, of his own volition, can invest himself with unde-
fined emergency powers.

Germany, after the First World War, framed the Weimar
Constitution, designed to secure her liberties in the Western
tradition. However, the President of the Republic, without
concurrence of the Reichstag, was empowered temporarily to
suspend any or all individual rights if public safety and
order were seriously disturbed or endangered. This proved a
temptation to every government, whatever its shade of
opinion, and in 13 years suspension of rights was invoked on
more than 250 occasions. Finally, Hitler persuaded President
von Hindenburg to suspend all such rights, and they were
never restored.

The French Republic provided for a very different kind of
emergency government known as the "state of seige." It dif-
fered from the German emergency dictatorship particularly
in that emergency powers could not be assumed at will by the
Executive but could only be granted as a parliamentary
measure. And it did not, as in Germany, result in a suspen-
sion or abrogation of law but was a legal institution governed
by special legal rules and terminable by parliamentary
authority.

Great Britain also has fought both World Wars under a
sort of temporary dictatorship created by legislation. As Par-
liament is not bound by written constitutional limitations, it
established a crisis government simply by delegation to its
Ministers of a larger measure than usual of its own unlimited
power, which is exercised under its supervision by Ministers
whom it may dismiss. This has been called the "high-water
mark in the voluntary surrender of liberty,'- but, as Churchill
put it, "Parliament stands custodian of these surrendered

100

liberties, and its most sacred duty will be to restore them in
their fullness when victory has crowned our exertions and our
perseverance." Thus, parliamentary controls made emergency
powers compatible with freedom.

This contemporary foreign experience may be inconclusive
as to the wisdom of lodging emergency powers somewhere in
a modern government. But it suggests that emergency powers
are consistent with free government only when their control
is lodged elsewhere than in the Executive who exercises them.
That is the safeguard that would be nullified by our adoption
of the "inherent powers" formula. Nothing in my experience
convinces me that such risks are warranted by any real neces-
sity, although such powers would, of course, be an Executive
convenience.

In the practical working of our Government we already
have evolved a technique within the framework of the Con-
stitution by which normal Executive powers may be consider-
ably expanded to meet an emergency. Congress may and has
granted extraordinary authorities which lie dormant in nor-
mal times but may be called into play by the Executive in
war or upon proclamation of a national emergency. In 1939,
upon congressional request, the Attorney General listed
ninety-nine such separate statutory grants by Congress of
emergency or wartime Executive powers. They were invoked
from time to time as need appeared. Under this procedure we
retain Government by law — special, temporary law, perhaps,
but law nonetheless. The public may know the extent and
limitations of the powers that can be asserted, and persons
affected may be informed from the statute of their rights and
duties.

In view of the ease, expedition and safety with which Con-
gress can grant and has granted large emergency powers, cer-
tainly ample to embrace this crisis, I am quite unimpressed
with the argument that we should affirm possession of them
without statute. Such power either has no beginning or it
has no end. If it exists, it need submit to no legal restraint.
I am not alarmed that it would plunge us straightwa}' into
dictatorship, but it is at least a step in that wrong direction.
*****

But I have no illusion that any decision by this Court can
keep power in the hands of Congress if it is not wise and
timely in meeting its problems. A crisis that challenges the
President equally, or perhaps primarily, challenges Congress.
If not good law, there was worldly wisdom in the maxim at-
tributed to Napoleon that "The tools belong to the man who
can use them." We may say that power to legislate for emer-
gencies belongs in the hands of Congress, but only Congress
itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no
man's leave, underneath the law" — to be governed by 'those
impersonal forces which we call law. Our Government is
fashioned to fulfill this concept so far as humanly possible.

101

The Executive, except for recommendation and veto, has no
legislative power. The Executive action we have here origi-
nates in the individual will of the President and represents
an exercise of authority without law. No one, perhaps not
even the President, knows the limits of the power he may
seek to exert in this instance and the parties affected cannot
learn the limit of their rights. We do not know today what
powers over labor or property would be claimed to flow from
Government possession if we should legalize it, what rights
to compensation would be claimed or recognized, or on what
contingency it would end. With all its defects, delays and
inconveniences, men have discovered no technique for long
preserving free government except that the Executive be
under the law, and that the law be made by parliamentary
deliberations.

Such institutions may be destined to pass away. But it is
the duty of the Court to be last, not first, to give them up.

The research required to bring together the statutes and Executive
orders concerned with war and national emergency could not have
been achieved without the help of all the Executive departments and
agencies. The Air Force gave the Special Committee access to its LITE
computer system which included the U.S. Code among its tapes. This
made it possible to begin to identify the statutes triggered by a state
of national emergency. In addition to the computer search, the Special
Committee made a hand-search of all 87 volumes of the Statutes-at-
Large.

The result of the search of the U.S. Code and the Statutes-at-Large
and of the collection of proclamations and Executive orders found
at the Library of Congress and at the Federal Register, were two
compilations, the first entitled "Emergency Powers Statutes: Pro-
visions of Federal Law Now in Effect Delegating to the Executive
Extraordinary Authority in Time of National Emergency," and the
second, "Executive Orders in Times of War and National Emergency."
In addition, "A Brief History of Emergency Powers in the United
States," prepared by the Library of Congress was just issued as a
committee print. A handbook containing the evaluations of all emer-
gency statutes made by Standing Committees of the Senate and by
Executive branch departments and agencies is now in the process of
being printed.

Section-by-Section Analysts

S. 3957, the National Emergencies Act, contains six sections. They
provide for the termination of existing states of national emergencies
to take effect nine months after date of enactment. A procedure for
meeting future emergencies is set forth including provisions for ter-
mination, extension and accountability for actions taken. The final
section lists existing but obsolete statutes to be repealed upon enact-
ment.

SECTION 101

Subsection (a) states that all existing national emergencies are to
be terminated and all powers and authorities conferred by statutes
dependent upon a declared state of national emergency are terminated

102

two hundred and seventy one days (nine months) after the enactment
of the National Emergencies Act.

Subsection (b) defines the term "any national emergency in effect"
as any general declaration of emergency made by the President pur-
suant to a statute authorizing him to declare a national emergency.

section 201

Subsection (a) provides that the President may declare a proclama-
tion of national emergency when it is "essential to the preservation,
protection, and defense of the Constitution, and is essential to the
common defense, safety, or well-being of the territory and people of
the United States." Any such proclamation must be made public and
published in the Federal Register.

Subsection (b) provides that any statute that becomes effective in
time of a declared national emergency, shall only be lawful if the pro-
visions of this Act are complied with. No future act will supercede
this Act unless it does so in specific terms, and declares that the pur-
pose of the new law is to supercede either particular parts or the
whole of this Act.

SECTION 301

When Congress declares war, any statutes that take effect in times
of a declared national emergency are also in effect. These emergency
powers remain in effect in conformity with procedures provided by
this Act.

SECTION 401

Subsection (a) provides that only declared states of national emer-
gency that comply with this Act shall have legal authority and effect.

Subsection (b) provides that the President must specify the emer-
gency powers statutes he is making use of. The powers specified in
the declaration must be published in the Federal Register, and the
declaration, as well as the specified statutes must be transmitted im-
mediately to Congress.

SECTION 402

Any future national emergency declared by the President shall
automatically terminate after six months, unless the emergency is
terminated earlier, or the Congress by concurrent resolution specifies
a day beyond the six months when the emergency will end.

SECTION 403

Subsection (a) provides that in the case of a war declared by Con-
gress statutory emergency powers specified by the President for use in
a proclamation terminate at the end of 180* days unless extended in
accordance with the procedures provided by this Act.

Subsection (b\ provides that the procedures for exercising emer-
gency powers and authorities contained in sections 401 and 402 of this
Act will apply to any subsequent declarations of national emergency
affecting the same war or national emergency.

103

SECTION 501

Subsection (a) provides for a reporting by the Executive branch
whereby each emergency order or rule promulgated under the author-
ity of the national emergency and its use will be recorded and reported
to Congress.

Subsection (b) provides that where required, proper confidentiality
will be maintained for reports transmitted to the Congress.

SECTION 601

Repeals certain statutes that are obsolete.

Estimated Cost of Legislation

It is not expected that enactment of this legislation would require
any significant additional expenditures.

Changes in Existing Law

In compliance with subsection 4 of rule XXIX of the Standing
Rules of the Senate, changes made by the bill as reported are shown
as follows (existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in which no
changes is proposed is shown in roman) :

TITLE 7.— AGRICULTURE, UNITED STATES CODE

[Chapter 42.— AGRICULTURAL COMMODITY SET- ASIDE

[§1741. Maximum and minimum quantities for set-aside;
definition.

[The Commodity Credit Corporation shall, as rapidly as the Secre-
tary of Agriculture shall determine to be practicable, set aside within
its inventories not more than the following maximum quantities and
not less than the following minimum quantities of agricultural com-
modities or products thereof heretofore or hereafter acquired by it
from 1954 and prior years' crops and production in connection with
its price support operations :

Maximum Minimum

Commodity quantity quantity

Wheat (bushels) 500,000,000 400,000,000

Upland cotton (bales) .... . 4, 000, 000 3, 000, 000

Cottonseed oil (pounds) .. 500,000,000

Butter (pounds)... 200,000,000

Nonfat dry milk solids (pounds) 300, 000, 000

Cheese (pounds)... 150,000,000

[Such quantities shall be known as the "commodity set-aside."

■474 O - 76 -

104

£§ 1742. Determination of commodity value for set-aside.

[Quantities of commodities shall not be included in the commodity
set-aside which have an aggregate value in excess of $2,500,000,000.
The value of the commodities placed in the commodity set-aside, for
the purpose of this section, shall be the Corporation's investment in
such commodities as of the date they are included in the commodity
set-aside, as determined by the Secretary.

[§ 1743. Reduction of set-aside.

[(a) Such commodity set-aside shall be reduced by disposals made
in accordance with the directions of the President as follows :

[ ( 1 ) Donation, sale, or other disposition for disaster or other
relief purposes outside the United States pursuant to and subject
to the limitations of subchapter III of chapter 41 of this title ;

[(2) Sale or barter (including barter for strategic materials)
to develop new or expanded markets for American agricultural
commodities, including but not limited to disposition pursuant
to and subject to the limitations of subchapter II of chapter 41 of
this title :

[(3) Donation to school-lunch programs; .
[(4) Transfer to the national stockpile established pursuant to
sections 98 to 98h of Title 50, without reimbursement from funds
appropriated for the purposes of said sections;

[(5) Donation, sale, or other disposition for research, experi-
mental, or educational purposes ;

[(6) Donation, sale, or other disposition for disaster relief
purposes in the United States or to meet any national emergency
declared by the President ; and

[(7) Sale for unrestricted use to meet a need for increased sup-
plies at not less than 105 per centum of the parity price in the
case of agricultural commodities and a price reflecting 105 per
centum of the parity price of the agricultural commodity in the
case of products of agricultural commodities.
[The President shall prescribe such terms and conditions for the
disposal of commodities in the commodity set-aside as he determines
will provide adequate safeguards against interference with normal
marketings of the supplies of such commodities outside the commodity
set-aside. Strategic materials acquired by the Commodity Credit Cor-
poration under paragraph (2) of this subsection shall be transferred
to the national stockpile established pursuant to sections 98 to 98h of
Title 50, and the Commodity Credit Corporation shall be reimbursed
for the value of the commodities bartered for such strategic materials
from funds appropriated pursuant to section 98g of Title 50. For the
purpose of such reimbursement, the value of any commodity so bar-
tered shall be the lower of the domestic market price or the Commodity
Credit Corporation's investment therein as of the date of such barter,
as determined by the Secretary of Agriculture.

[(b) The quantity of any commodity in the commodity set-aside
shall be reduced to the extent that the Commodity Credit Corporation
inventory of such commodity is reduced, by natural or other cause be-
yond the control of the Corporation, below the quantity then charged
to the commodity set-aside.

105

[§ 1744. Sale of commodities in set-aside ; exemption from pricing
limitations.

[(a) The Corporation shall have authority to sell, without regard
to section 1743(a)(7) of this title, any commodity covered by the
commodity set -aside for the purpose of rotating stocks or consolidat-
ing inventories, any such sale to be offset by purchase of the same
commodity in a substantially equivalent quantity or of a substantially
equivalent value.

[(b) Dispositions pursuant to this chapter shall not be subject to the
pricing limitations of section 1427 of this title.

[§ 1745. Computation of carry-over.

[The quantity of any commodity in the commodity set-aside or
transferred from the set-aside to the national stockpile established
pursuant to sections 98 to 98h of Title 50 shall be excluded from the
computation of "carryover'* for the purpose of determining the price
support level for such commodity under the Agricultural Act of
1949, as amended, and related legislation, but shall be included in the
computation of total supplies for purposes of acreage allotments and
marketing quotas under the Agricultural Adjustment Act of 1938. as
amended, and related legislation. Until such time as the commodity
set-aside has been completed, such quantity of the commodity as the
Secretary shall determine between the maximum and minimum quan-
tities specified in section 1741 of this title shall be excluded from the
computations of "carryover*' for the purpose of determining the price
support level, but shall be included in the computation of total sup-
plies for purposes of acreage allotments and marketing quotas, for the
1955 crop of the commodity, notwithstanding that the quantity so ex-
cluded may not have been acquired by the Corporation and included
in the commodity set-aside.

[§ 1746. Records and accounts.

[The Commodity Credit Corporation shall keep such records and
accounts as may be necessary to show, for each commodity set-aside,
the initial and current composition, value (in accordance with sec-
tion 1742 of this title), current investment, quantity disposed of,
method of disposition, and amounts received on disposition.

[§1747. Appropriations; determination of value of transferred
commodity.

[In order to make payment to the Commodity Credit Corporation
for any commodities transferred to the national stockpile pursuant to
section 1743(a) (4) of this title, there are authorized to be appropri-
ated amounts equal to the value of any commodities so transferred.
The value of any commodity so transferred, for the purpose of this
section, shall be the lower of the domestic market price or the
Commodity Credit Corporation's investment therein as of the date
of transfer to the stockpile, as determined by the Secretary of
Agriculture.*]

TITLE 8.— ALIENS AND NATIONALITY, UNITED STATES

CODE

106

Part III. — Loss of Nationality

§ 1481. Loss of nationality by native-born or naturalized citi-
zen ; voluntary action ; burden of proof ; presumptions.

(a) From and after the effective date of this chapter a person who
is a national of the United States whether by birth or naturalization,
shall lose his nationality by —

(1) * * *.

* * * * * * - *

[(10) departing from or remaining outside of the jurisdiction of
the United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and sevice in the military, air, or naval
forces of the United States. For the purposes of this paragraph failure
to comply with any provision of any compulsory service laws of the
United States shall raise the presumption that the departure from or
absence from the United States was for the purpose of evading or
avoiding training and service in the military, air, or naval forces of the
United States.]

TITLE 10.— ARMED FORCES, UNITED STATES CODE

Chapter 159.— REAL PROPERTY; RELATED PERSONAL
PROPERTY; AND LEASE OF NON-EXCESS PROPERTY
*******
§ 2667. Leases : non-excess property.

(a) * * *.
*******

(b) A lease under subsection (a) —
/j\ * * *

* * * * * * *

[(4) must be revocable by the Secretary during a national emer-
gency declared by the President ; and]

*******

Chapter 873.— CIVILIAN EMPLOYEES

*******

[§4025. Production of supplies and munitions: hours and pay of
laborers and mechanics.

[During a national emergency declared by the President, the regular
working hours of laborers and mechanics' of the Department of the
Army producing military supplies or munitions are 8 hours a day or
40 hours a week. However, under regulations prescribed by the Secre-
tary of the Army these hours may be exceeded. Each laborer or me-
chanic who works more than 40 hours in a workweek shall be paid at a
rate not less than one and one-half times the regular hourly rate for
each hour in excess of 40.]

107

Chapter 873.r-CIVILIAN EMPLOYEES

*******
[§9025. Production of supplies and munitions: hours and pay of
laborers and mechanics.

[During a national emergency declared by the President, the regular
working hours of laborers and mechanics of the Department of the Air
Force producing military supplies or munitions are 8 hours a day or 40
hours a week. However, under regulations prescribed by the Secretary
of the Air Force these hours may be exceeded. Each laborer or me-
chanic who works more than 40 hours in a workweek shall be paid at a
rate not less than one and one-half times the regular hourly rate for
each hour in excess of 40.}

TITLE 12.— BANKS AND BANKING, UNITED STATES

CODE

*******
Chapter 2.— NATIONAL BANKS

ORGANIZATION AND GENERAL PROVISIONS

[§ 95. Emergency limitations and restrictions on business of mem-
bers of Federal Reserve System.

|Tn order to provide for the safer and more effective operation of
the national banking system and the Federal Reserve System, to pre-
serve for the people the full benefits of the currency provided for by
the Congress through the national banking system and the Federal
Reserve System, and to relieve interstate commerce of the burdens and
obstructions resulting from the receipt on an unsound or unsafe basis
of deposits subject to withdrawal by check, during such emergency
period as the President of the United States by proclamation may
prescribe, no member bank of the Federal Reserve System shall trans-
act any banking business except to such extent and subject to such
regulations, limitations, and restrictions as may be prescribed by the
Secretary of the Treasury, with the approval of the President. Any
individual, partnership, corporation, or association, or any director,
officer, or employee thereof, violating any of the provisions of this
section shall be deemed guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than $10,000 or, if a natural person,
may, in addition to such fine, be imprisoned for a term not exceeding
ten years. Each day that any such violation continues shall be deemed
a separate offense.

[§95a. Regulation of transactions in foreign exchange of gold
and silver; property transfers; vested interests, en-
forcement and penalties.

[(1) During the time of war or during any other period of national
emergency declared by the President, the President may, through any
agency that he may designate, or otherwise, and under such rules and
regulations as he may prescribe, by means of instructions, licenses, or
otherwise —

108

[(A) investigate, regulate, or prohibit any transactions in for-
eign exchange, transfers of credit or payments between, by,
through, or to any banking institution, and the importing, export-
ing, hoarding, melting, or earmarking of gold or silver coin or
bullion, currency or securities, and

[(B) investigate, regulate, direct and compel, nullify, void,
prevent or prohibit, any acquisition holding, withholding, use,
transfer, withdrawal, transportation, importation or exportation
of, or dealing in, or exercising any right, power, or privilege with
respect to, or transactions involving, any property in which any
foreign country or a national thereof has any interest,
by any person, or with respect to any property, subject to the jurisdic-
tion of the United States ; and any property or interest of any foreign
country or national thereof shall vest, when, as, and upon the terms,
directed by the President, in such agency or person as may be desig-
nated from time to time by the President, and upon such terms and
conditions as the President may prescribe such interest or property
shall be held, used, administered, liquidated, sold, or otherwise dealt
with in the interest of and for the benefit of the United States, and
such designated agency or person may perform any and all acts inci-
dent to the accomplishment or furtherance of these purposes ; and the
President shall, in the manner hereinabove provided, require any per-
son to keep a full record of, and to furnish under oath, in the form of
reports or otherwise, complete information relative to any act or trans-
action referred to in this section either before, during, or after the
completion thereof, or relative to any interest in foreign property, or
relative to any property in which any foreign country or any national
thereof has or has had any interest, or as may be otherwise necessary
to enforce the provisions of this section, and in any case in which a
report could be required, the President may, in the manner herein-
above provided, require the production, or if necessary to the national
security or defense, the seizure, of any books of account, records, con-
tracts, letters, memoranda, or other papers, in the custody or control of
such person ; and the President may, in the manner hereinabove pro-
vided, take other and further measures not inconsistent herewith for
the enforcement of this section.

[(2) Any payment, conveyance, transfer, assignment, or delivery
of property or interest therein, made to or for the account of the
United States, or as otherwise directed, pursuant to this section or
any rule, regulation, instruction, or direction issued hereunder shall to
the extent thereof be a full acquittance and discharge for all purposes
of the obligation of the person making the same ; and no person shall be
held liable in any court for or in respect to anything done or omitted in
good faith in connection with the administration of, or in pursuance
of and in reliance on, this section, or any rule, regulation, instruction,
or direction issued hereunder.

[(3) As used in this section, the term "United States" means the
United States and any place subject to the jurisdiction thereof: Pro-
vided, however, That the foregoing shall not be construed as a limita-
tion upon the power of the President, which is conferred, to prescribe
from time to time, definitions, not inconsistent with the purposes of
this section, for any or all of the terms used in this section. Whoever

109

willfully violates any of the provisions of this section or of any
license, order, rule or regulation issued thereunder, shall, upon con-
viction, be fined not more than $10,000, or, if a natural person, may be
imprisoned for not more than ten years, or both ; and any officer, direc-
tor, or agent of any corporation who knowingly participates in such
violation may be punished by a like fine, imprisonment, or both. As
used in this section, the term "person" means an individual, partner-
ship, association, or corporation.]

Chapter 3.— FEDERAL RESERVE SYSTEM

DEFINITIONS, ORGANIZATION, AND GENERAL PROVISIONS AFFECTING

SYSTEM

[§249. Regulation of consumer credit

[After November 1, 1947, the Board of Governors of the Federal
Reserve System shall not exercise consumer credit controls pursuant
to Executive Order Numbered 8843, and no such consumer credit con-
trols shall be exercised after such date except during the time of war
beginning after August 8, 1947, or any national emergency declared
by the President after August 8, 1947.]

*******

Chapter 13.— NATIONAL HOUSING

[§ 1703. Insurance of financial institutions.

[(a) The Secretary is authorized and empowered upon such terms
and conditions as he may prescribe, to insure banks, trust companies,
personal finance companies, mortgage companies, building and loan
associations, installment lending companies and other such financial
institutions, which the Secretary finds to be qualified by experience or
facilities and approves as eligible for credit insurance, against losses
which they may sustain as a result of loans and advances of credit,
and purchases of obligations representing loans and advances of
credit, made by them on and after July 1, 1939, and prior to June 30,
1973, for the purpose of (i) financing alterations, repairs, and im-
provements upon or in connection with existing structures, and the
building of new structures, upon urban, suburban, or rural real prop-
erty (including the restoration, rehabilitation, rebuilding, and re-
placement of such improvements which have been damaged or de-
stroyed by earthquake, conflagration, tornado, hurricane, cyclone,
flood, or other catastrophe) , by the owners thereof or by lessees of such
real property under a lease expiring not less than six months after the
maturity of the loan or advance of credit ; and for the purpose of (ii)
hnancmg the purchase of a mobile home to be used by the owner as
his principal residence. In no case shall the insurance granted b V the
Secretary under this section to any such financial institution on loans,
advances of credit, and purchases made by such financial institution

thl S ^i PUrP ° S ? °? ******* Jul y 1> 1939, exceed 10 per centum of
the total amount of such loans, advances of credit, and purchases:

110

Provided, That with respect to any loan, advance of credit, or pur-
chase made after the effective date of the Housing Act of 1954, the
amount of any claim for loss on any such individual loan, advance of
credit or purchase paid by the Secretary under the provisions of this
section to- a lending institution shall not exceed 90 per centum of such
loss.]

* * * * * * *

[§ 1705. Allocation of funds.

[For the purposes of carrying out the provisions of this subchap-
ter and subchapters II and III of this chapter the President, in his
discretion, is authorized to provide such funds or any portion
thereof by allotment to the Secretary from any funds that are avail-
able, or may hereafter be made available, to the President for emer-
gency purposes.]

*******
[§ 1748b. Insurance of mortgages.
[(a) Aggregate amount of insurance; termination date.

[In order to assist in relieving the acute shortage and urgent need
for family housing which now exists at or in areas adjacent to military
installations because of uncertainty as to the permanency of such in-
stallations and to increase the supply of necessary family housing ac-
commodations for personnel at such installations, the Secretary is
authorized, upon application of the mortgagee, to insure mortgages
(including advances on such mortgages during construction) which
are eligible for insurance as hereinafter provided, and, upon such
terms as the Secretary may prescribe, to make commitments for so
insuring such mortgages prior to the date of their execution or dis-
bursement thereon : Provided, That the aggregate amount of principal
obligations of all mortgages insured under this subchapter (except
mortgages insured pursuant to the provisions of this subchapter in
effect prior to August 11, 1955) shall not exceed $2,300,000,000 : And
provided further, That the limitation in section I7l5h of this title
shall not apply to this subchapter : And provided further, That no
more mortgages shall be insured under this section after October 1,
1962, except pursuant to a commitment to insure before such date,
and not more than twenty-eight thousand family housing units shall
be contracted for after June 30, 1959, pursuant to any mortgage in-
sured under this section after such date.]

TITLE 16.— CONSERVATION, UNITED STATES CODE

*******

Chapter 12A.— TENNESSEE VALLEY AUTHORITY

*******

§831d. Directors; maintenance and operation of plant for pro-
duction, sale, and distribution of fertilizer and power.

The board is authorized —
(a) * * *.

Ill

[(m) Xo products of the Corporation except ferrophosphorus shall
be sold for use outside of the United States, its Territories and pos-
sessions, except to the United States Government for the use of its
Army and Navy, or to its allies in case of war or, until six months
after the termination of the national emergency proclaimed by the
President on December 16, 1950, or until such earlier date or dates as
the Congress by concurrent resolution or the President may provide
but in no event after April 1, 1953, to nations associated with the
United States in defense activities.]

TITLE 18.— CRIMES AND CRIMINAL PROCEDURE,
UNITED STATES CODES

Chapter 67.— MILITARY AND NAVY

[§ 1383. Restrictions in military areas and zones.

[Whoever, contrary to the restrictions applicable thereto, enters,
remains in, leaves, or commits any act in any military area or military
zone prescribed under the authority of an Executive order of the
President, by the Secretary of the Army, or by any military com-
mander designated by the Secretary of the Army, shall, if it appears
that he knew or should have known of the existence and extent of the.
restrictions or order and that his act was in violation thereof, be fined
not more than $5,000 or imprisoned not more than one year, or both.]

TITLE 26.-INTERNAL REVENUE CODE, UNITED STVTES

CODE

Chapter 1.— NORMAL TAXES AND SURTAXES

Part VI.— Itemized Deductions for Individuals and Corporations

*******
[§ 168, Amortization of emergency facilities.
t(a) General rule.

[Every person, at his election, shall be entitled to a deduction with
respect to the amortization of the adjusted basis (for determining
gam) of any emergency facility (as defined in subsection (d)), based
on a period of 60 months. Such amortization deduction shall be an
amount, with respect to each month of such period within the taxable
year, equal to the adjusted basis of the facility at the end of such
month divided by the number of months (including the month for
which the deduction is computed) remaining in the period. Such ad-
justed basis at the end of the month shall be computed without regard
to the amortization deduction for such month. The amortization de-
duction above provided with respect to any month shall, except to the
extent provided in subsection (f ) , be in lieu of the depreciation deduc-

112

tion with respect to such facility for such month provided by section
167. The 60-month period shall begin as to any emergency facility, at
the election of the taxpayer, with the month following the month in
which the facility was completed or acquired, or with the succeeding
taxable year.

[(b) Election of amortization.

[The election of the taxpayer to take the amortization deduction
and to begin the 60-month period with the month following the month
in which the facility was completed or acquired, or with the taxable
year succeeding the taxable year in which such facility was completed
or acquired, shall be made by filing with the Secretary or his delegate,
in such manner, in such form, and within such time, as the Secretary
or his delegate may by regulations prescribe, a statement of such
election.

[(c) Termination of amortization deduction.

[A taxpayer which has elected under subsection (b) to take the
amortization deduction provided in subsection (a) may, at any time
after making such election, discontinue the amortization deduction
with respect to the remainder of the amortization period, such discon-
tinuance to begin as of the beginning of any month specified by the
taxpayer in a notice in writing filed with the Secretary or his delegate
before the beginning of such month. The depreciation deduction pro-
vided under section 167 shall be allowed, beginning with the first
month as to which the amortization deduction does not apply and the
taxpayer shall not be entitled to any further amortization deduction
with respect to such emergency facility.

t(d) Definitions.

[(1) Emergency facility.

For purposes of this section, the term "emergency facility" means
any facility, land, building, machinery, or equipment, or any part
thereof, the construction, reconstruction, erection, installation, or
acquisition of which was completed after December 31, 1949, and
with respect to which a certificate under subsection (e) has been made.
Jn no event shall an amortization deduction be allowed in respect of
any emergency facility for any taxable year unless a certificate in
respect thereof under this paragraph shall have been made before the
filing of the taxpayer's return for such taxable year.

[(2) Emergency period.

[For purposes of this section, the term "emergency period" means
'the period beginning January 1, 1950, and ending on the date on which
the President proclaims that the utilization of a substantial portion of
the emergency facilities with respect to which certifications under sub-
section (e) have been made is no longer required in the interest of na-
tional defense.

[(e) Determination of adjusted basis of emergency facility.

[In determining, for purposes of subsection (a) or (g) , the adjusted
basis of an emergency facility —

J[(l) Certification on or before August 22, 1957.

[In the case of a certificate made on or before August 22, 1957, there
shall be included only so much of the amount of the adjusted basis of

113

such facility (computed without regard to this section) as is properly
attributable to such construction, reconstruction, erection, installation,
or acquisition after December 31, 1949, as the certifying authority,
designated by the President by Executive order, has certified as neces-
sary in the interest of national defense during the emergency period,
and only such portion of such amount as such authority has certified
as attributable to defense purposes. Such certification shall be under
such regulations as may be prescribed from time to time by such certi-
fying authority with the approval of the President. An application for
a certificate must be filed at such time and in such manner as may be
prescribed by such certifying authority under such regulations, but in
no event shall such certificate have any effect unless an application
therefor is filed before March 24, 1951, or before the expiration of six
months after the beginning of such construction, reconstruction, erec-
tion, or installation or the date of such acquisition, whichever is later.

[(2) Certifications after August 22, 1957.

[In the case of a certificate made after August 22, 1957, there shall
be included only so much of the amount of the adjusted basis of such
facility (computed without regard to this section) as is properly
attributable to such construction, reconstruction, erection, installa-
tion, or acquisition after December 31, 1949, as the certifying author-
ity designated by the President by Executive order, has certified is to
be used —

[(A) to produce new or specialized defense items or compo-
nents of new or specialized defense items (as defined in para-
graph (4) ) during the emergency period,

[(B) to provide research, developmental, or experimental serv-
ices during the emergency period for the Department of Defense
(or one of the component departments of such Department), or
for the Atomic Energy Commission, as a part of the national
defense program, or

[(C) to provide primary processing for uranium ore or uranium
concentrate under a program of the Atomic Energy Commission
for the development of new sources of uranium ore or uranium
concentrate,
and only such portion of such amount as such authority has certified is
attributable to the national defense program. Such certification shall
be under such regulations as may be prescribed from time to time by
such certifying authority with the approval of the President. An ap-
plication for a certificate must be filed at such time and in such man-
ner as may be prescribed by such certifying authority under such
regulations but in no event shall such certificate have any effect unless
an application therefor is filed before the expiration of six months after
the beginning of such construction, reconstruction, erection, or instal-
lation or the date of such acquisition. For purposes of the preceding
sentence, an application which was timely filed under this subsection
on or before August 22, 1957, and which was pending on such date,
shall be considered to be an application timely filed under this
paragraph.

[(3) Separate facilities; special rule.

[After the completion or acquisition of any emergency facility with
respect to which a certificate under paragraph (1) or (2) has been
made, any expenditure (attributable to such facility and to the period

114

after such completion or acquisition) which does not represent con-
struction, reconstruction, erection, installation, or acquisition included
in such certificate, but with respect to which a separate certificate is
made under paragraph (1) or (2), shall not be applied in adjustment
of the basis of such facility, but a separate basis shall be computed
therefor pursuant to paragraph (1) or (2), as the case may be, as if
it were a new and separate emergency facility.

[(4) Definitions.

[For purposes of paragraph (2) —
[(A) New or specialized defense item.

[The term "new or specialized defense item" means only an item
(excluding services) —

[(i) which is produced, or will be produced, for sale to the
Department of Defense (or one of the component departments of
such Department), or to the Atomic Energy Commission, for use
in the national defense program, and

[(ii) for the production of which existing productive facilities
are unsuitable because of its newness or of its specialized defense
features.

[(B) Component of new or specialized defense item.

[The term component of a new or specialized defense item means
only an item —

[(i) which is, or will become a physical part of a new or spe-
cialized defense item, and

[(ii) for the production of which existing productive facilities
are unsuitable because of its newness or of its specialized defense
features.

[(5) Limitation with respect to uranium ore or uranium concen-
trate processing facilities.

[No certificate shall be made under paragraph (2) (C) with respect
to any facility unless existing facilities for processing the uranium ore
or uranium concentrate which will be processed by such facility are
unsuitable because of their location.

[(f) Depreciation deduction.

[If the adjusted basis of the emergency facility (computed without
regard to this section) is in excess of the adjusted basis computed under
subsection (e), the depreciation deduction provided by section 167
shall, despite the provisions of subsection (a) of this section, be al-
lowed with respect to such emergency facility as if its adjusted basis
for the purpose of such deduction were an amount equal to the amount
of such excess.

[(g) Payment by United States of unamortized cost of facility.

[If an amount is properly includible in the gross income of the
taxpayer on account of a payment with respect to an emergency facil-
ity and such payment is certified as provided in paragraph (1), then,
at the election of the taxpayer in its return for the taxable year in
which such amount is so includible —

[(1) The amortization deduction for the month in which such
amount is so includible shall (in lieu of the amount of the deduc-
tion for such month computed under subsection (a)) be equal to

115

the amount so includible but not in excess of the adjusted basis
of the emergency facility as of the end of such month (computed
without regard to any amortization deduction for such month).
Payments referred to in this subsection shall be payments the
amounts of which are certified, under such regulations as the
President may prescribe, by the certifying authority designated
by the President as compensation to the taxpayer for the un-
amortized cost of the emergency facility made because —

[(A) a contract with the United States involving the use
of the facility has been, terminated by its terms or by can-
cellation, or

[(B) the taxpayer had reasonable ground (either from

provisions of a contract with the United States involving the

use of the facility, or from written or oral representations

made under authority of the United States) for anticipating

future contracts involving the use of the facility, which future

contracts have not been made.

[(2) In case the taxpayer is not entitled to any amortization

deduction with respect to the emergency facility, the depreciation

deduction allowable under section 167 on account of the month

in which such amount is so includible shall be increased by such

amount, but such deduction on account of such month shall not

be in excess of the adjusted basis of the emergency facility as

of the end of such month (computed without regard to any

amount allowable, on account of such month, under section 167

of this paragraph) .

[(h) Life tenant and remainderman.

[In the case of property held by one person for life with remainder
to another person, the deduction shall be computed as if the life tenant
were the absolute owner of the property and shall be allowable to the
life tenant.

[(i) Termination.

[No certificate under subsection '(e) shall be made with respect to
any emergency facility after December 31, 1959.]

TITLE 41.— PUBLIC CONTRACTS, UNITED STATES CODE

[Chapter 2.— TERMINATION OF WAR CONTRACTS

[§ 101. Declaration of policy.

[The Congress declares that the objectives of this chapter are —
[(a) to facilitate maximum war production during the war,
and to expedite reconversion from war production to civilian pro-
duction as war conditions permit;

[(b) to assure to prime, contractors and subcontractors, small
and large, speedy and equitable final settlement of claims under
terminated war contracts, and adequate interim financing until
such final settlement;

116

[(c) to assure uniformity among Government agencies in basic
policies and administration with respect 'to such termination set-
tlements and interim financing ;

[(d) to facilitate the efficient use of materials, manpower, and
facilities for war and civilian purposes by providing prime con-
tractors and subcontractors with notice of termination of their
war contracts as far in advance of the cessation of work there-
under as is feasible and consistent with the national security ;

[(e) to assure the expeditious removal from the plants of
prime contractors and subcontractors of termination inventory
not to be retained or sold by the contractor ;

[(f) to use all practicable methods compatible with the fore-
going objectives to prevent improper payments and to detect and
prosecute fraud.

[§102. Surveillance by Congress.

[(a) To assist the Congress in appraising the administration of
this chapter and in developing such amendments or related legisla-
tion as may further be necessary to accomplish the objectives of this
chapter, the appropriate committees of the Senate and the House of
Representatives shall study .each report submitted to the Congress
under this chapter and shall otherwise maintain continuous surveil-
lance of the operations of the Government agencies under this chapter.

[(b) Repealed. Oct. 31, 1951, ch. 654, § 1 (110) , 65 Stat. 705.

[§ 103. Definitions.

[As used in this chapter —

[(a) The term "prime contract" means any contract, agreement, or
purchase order heretofore or hereafter entered into by a contracting
agency and connected with or related to the prosecution of the war;
and the term "prime contractor" means any holder of * one or more
prime contracts.

[(b) The term "subcontract" means any contract, agreement, or
purchase order heretofore or hereafter entered into to perform any
work, or to make or furnish any material to the extent that such work
or material is required for the performance of any one or more prime
contracts or of any one or more other subcontracts ; and the term "sub-
contractor" means any holder of one or more subcontracts.

[(c) The term "war contract" means a prime contract or a subcon-
tract; and the term "war contractor" means any holder of one or more
war contracts.

[(d) The terms "termination," "terminate/' and "terminated" refer
to the termination or cancellation, in whole or in part, of work under
a prime contract for the convenience or at the option of the Govern-
ment (except for default of the prime contractor) or of work under
a subcontract for any reason except the default of the subcontractor.

[(e) The term "material" includes any article, commodity, ma-
chinery, equipment, accessory, part, component, assembly, work in
process, maintenance, repair, and operating supplies, and any product
of any kind.

[(f) The term "Government agency" means any Executive depart-
ment of the Government, or any administrative unit or subdivision
thereof, any independent agency or any corporation owned or con-

117

trolled by the United States in the Executive branch of the Govern-
ment, and includes any contracting agency.

[(g) The term "contracting agency" means any Government
agency which has been or hereafter may be authorized to make con-
tracts pursuant to section 611 of Appendix to Title 50, and includes
the Reconstruction Finance Corporation and any corporation or-
ganized pursuant to the Reconstruction Finance Corporation Act,
and the Secretary of Commerce.

[(h) The term "termination claim" means any claim or demand by
a war contractor for fair compensator for the termination of any war
contract and any other claim under a terminated war contract, which
regulations prescribed under this chapter authorize to be asserted and
settled in connection with any termination settlement.

[(i) The term "interim financing" includes advance payments, par-
tial payments, loans, discounts, advances, and commitments in connec-
tion therewith, and guaranties of loans, discounts, advances and com-
mitments in connection therewith and any other type of financing
made in contemplation of or related to termination of war contracts.

[(j) The term "Administrator" means the Administrator of Gen-
eral Services.

[(k) The term "person" means any individual, corporation, part-
nership, firm, association, trust, estate, or other entity.

[(1) The term "termination inventory" means any materials (in-
cluding a proper part of any common materials) , properly allocable to
the terminated portion of a war contract, except any machinery or
equipment subject to a separate contract specifically governing the use
or disposition thereof.

[(m) The term "final and conclusive," as applied to any settle-
ment, finding, or decision, means that such settlement, finding, or de-
cision shall not be reopened, annulled, modified, set aside, or disre-
garded by any officer, employee, or agent of the United States or in any
suit, action, or proceeding except as provided in this chapter.

[§104. Administration of chapter; rules and regulations;
personnel.

[(a) Repealed. Pub. L. 89-554. § 8(a), Sept. 6, 1066, 80 Stat. 652.
[(b) In order to insure uniform and efficient administration of the
provisions of this chapter, the Administrator of General Services,
subject to such provisions, by general orders or general regulations —
[(1) shall prescribe policies, principles, methods, procedures,
and standards to govern the exercise of the authority and dis-
cretion and the performance of the duties and functions of all
Government agencies under this chapter; and
- [(2) may require or restrict the exercise of any such authority
and discretion, or the performance of any such duty or function,
to such extent as he deems necessary to carry out the provisions of
this chapter.
[(c) The exercise of any authority or discretion and the perform-
ance of any duty or function, conferred or imposed on any Govern-
ment agency by this chapter, shall be subject to such orders' and regu-
lations prescribed by the Administrator of General Services pursuant
to subsection (b) of this section. Each Government agency shall carry

118

out such orders and regulations of the Administrator of General Serv-
ices expeditiously, and shall issue such regulations with respect to its
operations and procedures as may be necessary to carry out the poli-
cies, principles, methods, procedures, and standards prescribed by the
Administrator of General Services. Any Government agency may
issue such further regulations not inconsistent with the general orders
or regulations of the Administrator of General Services as it deems
necessary or desirable to carry out the provisions of this chapter.

[(d) The Administrator of General Services -may, within the limits
of funds which may be made available, employ and fix the compensa-
tion of necessary personnel in accordance with the provisions of the
civil-service laws and chapter 51 and subchapter III of chapter 53 of
Title 5, and make expenditures for supplies, facilities, and services
necessary for the performance of his functions under this chapter.
Without regard to the provisions of the civil-service laws, he may
employ certified public accountants, qualified cost accountants, indus-
trial engineers, appraisers, and other experts, and contract with cer-
tified public accounting firms and qualified firms of engineers in the
discharge of the duties imposed upon him and in furtherance of the
objectives and policies of this chapter. The Administrator of General
Services shall perform the duties imposed upon him through the per-
sonnel and facilities of the contracting agencies and other established
Government agencies, to the extent that this does not interfere with
the function of the Administrator of General Services to insure uni-
form and efficient administration of the provisions of this chapter.

[(e) All orders and regulations prescribed by the Administrator of
General Services or any Government agency under this chapter shall
be published in the Federal Register.

[§ 105. Contract Settlement Advisory Board ; composition ; duties.

[There is created a Contract Settlement Advisory Board, with
which the Administrator of General Services shall advise and consult.
The Board shall be composed of the Administrator of General Serv-
ices who shall act as its Chairman, and of the Secretary of the Army,
the Secretary of the Navy, the Chairman of the Maritime Commis-
sion, the Secretary of State, the chairman of the board of directors of
the Reconstruction Finance Corporation, Secretary of Commerce, and
the Attorney General or any alternate or representative designated by
any of them. The Administrator of General Services shall request
other Government agencies to participate in the deliberations of the
Board whenever matters specially affecting them are under
consideration.

[§ 106. Basis for settlement of termination claims.

[(a) Priority to private contractors.

[It is the policy of the Government, and it shall be the responsibility
of the contracting agencies and the Administrator of General Serv-
ices to provide war contractors with speedy and fair compensation
for the termination of any war contract, in accordance with and sub-
ject to the provisions of this chapter, giving priority to contractors
whose facilities are privately owned or privately operated. Such fair
compensation for the termination of subcontracts shall be based on
the same principles as compensation for the termination of prime
contracts.

119

[(b) Establishment of methods and standards.

[Each contracting agency shall establish methods and standards,
suitable to the conditions of various war contractors, for determining
fair compensation for the termination of war contracts on the basis of
actual, standard, average, or estimated costs, or of a percentage of the
contract price based on the estimated percentage of completion of
work under the terminated contract, or on any other equitable basis, as
it deems appropriate. To the extent that such methods and standards
require accounting, they shall be adapted, so far as practicable, to the
accounting systems used by war contractors, if consistent with recog-
nized commercial accounting practice.

[(c) Conclusiveness of settlement.

[Any contracting agency may settle all or any part of any termina-
tion claim under any war contract by agreement with the war con-
tractor, or by determination of the amount due on the claim or part
thereof without such agreement, or by any combination of these
methods. Where any such settlement is made by agreement', the set-
tlement shall be final and conclusive, except (1) to the extent other-
wise agreed in the settlement; (2) for fraud; (3) upon renegotiation
to eliminate excessive profits under section 1191 of Appendix to Title
50, unless exempt or exempted under such section; or (4) by mutual
agreement before or after payment. Where any such settlement is
made by determination without agreement, it shall likewise be final
and conclusive, subject to the same exceptions as if made by agree-
ment, unless the war contractor appeals or brings suit in accordance
with section 113 of this title : Provided. That no settlement agreement
hereunder involving payment to a war contractor of an amount in
excess of $50,000 (or such lesser amount as the Administrator of Gen-
eral Services may from time to time determine) shall become binding
upon the Government until the agreement has been . reviewed and
approved by a settlement review board of three or more members
established by the contracting agency in the bureau, division, regional
or district office, or other unit of the contracting agency authorized
to make such settlement, or in the event of disapproval by the settle-
ment review board, unless approved by the head of sucli bureau, di-
vision, regional or district office, or other unit. Failure of the settle-
ment review board to act upon any settlement within thirty days after
its submission to the board shall operate as approval by the board.
The sole function of settlement review boards shall be to determine the
over-all reasonableness of proposed settlement agreements from the
point of view of protecting the interests of the Government. In deter-
mining, for purposes of this subsection, whether review of any settle-
ment agreement is required because of the amounts involved, no de-
duction shall be made on account of credits for property chargeable
to the Government or for advance or partial payments, but amounts
payable under such settlement agreement for completed articles or
work at the contract price and for the discharge of the termination
claims of subcontractors shall be deducted.

[(d) Allowable costs.

[Except as hereinafter provided, the methods and standards estab-
lished under subsection (b) of this section for determining fair com-
pensation for termination claims .which are not settled by agreement

66-474 O - 76 - 9

120

shall be designed to compensate the war contractor fairly for the
termination of the war contract, taking into account —

[(1) the direct and indirect manufacturing, selling and dis-
tribution, administrative and other costs and expenses incurred
by the war contractor which are reasonably necessary for the
performance of the war contract and properly allocable to the
terminated portion thereof under recognized commercial account-
ing practices; and

[(2) reasonable costs and expenses of settling termination
claims of subcontractors related to the terminated portion of the
war contract ; and

[(3) reasonable accounting, legal, clerical, and other costs and
expenses incident to termination and settlement of the terminated
war contract ; and

[(4) reasonable costs and expenses of removing, preserving,
storing and disposing of termination inventories; and

[(5) such allowance for profit on the preparations made and
work done for the terminated portion of the war contract as is
reasonable under the circumstances ; and

[(6) interest on the termination claims in accordance with sub-
section (f ) of this section; and

[(7) the contract price and all amounts otherwise paid or pay-
able under the contract.
[The following shall not be included as elements of cost :

[(i) Losses on other contracts, or from sales or exchanges of
capital assets, fees and other expenses in connection with reorgani-
zation or recapitalization, antitrust or Federal income-tax liti-
gation, or prosecution of Federal income-tax claims or other
claims against the Government (except as provided in paragraph
(3) of this subsection) : losses on investments; provisions for con-
tingencies; and premiums on life insurance where the contractor
is the beneficiary.

[(ii) The expense of conversion of the contractor's facilities to
uses other than the performance of the contract.

[(iii) Expenses due to the negligence or willful failure of the
contractor to discontinue with reasonable promptness the incur-
ring of expenses after the effective date of the termination notice.
£(iv) Costs incurred in respect to facilities, materials, or serv-
ices purchased or work done in excess of the reasonable quantita-
tive requirements of the entire contract.
[The failure specifically to mention in this subsection any item of
cost is not intended to imply that it should be allowed or disallowed.
The Administrator of General Services may interpret the provisions
of this subsection and may provide for the inclusion or exclusion of
other costs in accordance with recognized commercial accounting
practices.

[Where the small size of claims or the nature of production or per-
formance or other factors make it impracticable to apply the principles
stated in this subsection to any class of settlements which are subject
to this subsection, the contracting agencies may establish alternative
methods and standards for determining fair compensation for that
class of termination claims. The aggregate amount of compensation

121

allowed in accordance with this subsection (excluding amounts al-
lowed under paragraphs (3) and (4) of this subsection) shall not ex-
ceed the total contract price reduced by the amount of payments other-
wise made or to be made under the contract.

[(e) Settlement by agreement.

[In order to carry out the objectives of this chapter, termination
claims shall be settled by agreement to the maximum extent feasible
and the methods and standards established under subsection (b) of
this section shall be designed to facilitate such settlements. To the
extent that he deems it practicable to do so without impeding expe-
ditious settlements, the Administrator of General Services shall re-
quire the contracting agencies to take into account the factors enu-
merated in subsection (d) of this section in establishing methods and
standards for determining fair compenastion in the settlement of ter-
mination claims by agreement.

[(f) Interest.

[Each contracting agency shall allow and pay interest on the
amount due and unpaid from time to time on any termination claim
under a prime contract at the rate of 2y 2 per centum per annum for
the period beginning thirty days after the date fixed for termination
and ending with the date of final payment, except that (1) if the
prime contractor unreasonably delays the settlement of his claim, in-
terest shall not accrue for the period of such delay, (2) if interest for
the period after termination on any advance payment or loan, made or
guaranteed by the Government, has been waived for the benefit of the
contractor, the amount of the interest so waived allocable to the termi-
nated contract or the terminated part of the contract shall be deducted
from the interest otherwise payable hereunder, and (3) if after de-
livery of findings by a contracting agency, the contractor appeals or
sues as provided in section 113 of this title, interest shall not accrue
after the thirtieth day following the delivery of the findings on any
amount allowed by such findings, unless such amoimt is increased
upon such appeal or suit. In approving, ratifying, authorizing, or
making termination settlements with subcontractors, each contract-
ing agency shall allow interest on the termination claim of the sub-
contractor on the same basis and subject to the same conditions as are
applicable to a prime contractor.

[(g) Amendment of contracts.

[Where any war contract does not provide for or provides- against
such fair compensation for its termination, the contracting agency,
either before or after its termination, shall amend such war contract
by agreement with the war contractor, or shall authorize, approve, or
ratify an amendment of such war contract by the parties thereto, to
provide for such fair compensation.

[§ 107. Settlement of subcontractors' claims.

[(a) Conclusiveness of settlement.

[Where, in connection with the settlement of any termination claim
by a contracting agency, any war contractor makes settlements of the
termination claims of his subcontractors, the contracting agency shall

122

limit or omit its review of such settlements with subcontractors to
the maximum extent compatible with the public interest. Any contrac-
ting agency (1) may approve, ratify, or authorize such settlements
with subcontractors upon such evidence, terms, and conditions as it
deems proper; (2) shall vary the scope and intensity of its review of
such settlements according to the reliability of the war contractor, the
size, number, and complexity of such claims, and other relevant fac-
tors; and (3) shall authorize war contractors to make such settlements
with subcontractors without review by the contracting agency, when-
ever the reliability of the war contractor, the amount or nature of the
claims, or other reasons appear to the contracting agency to justify
such action. Any such settlement of a subcontract approved, ratified,
or authorized by a contracting agency shall be final and conclusive
as to the amount due to the same extent as a settlement >under subsec-
tion (c) of section 106 of this title, and no war contractor shall be liable
to the United States on account of any amounts paid thereon except
for his own fraud.

[(b) Supervision of payments to war contractors.

[Whenever any contracting agency is satisfied of the inability of a
war contractor to meet his obligations it shall exercise supervision or
control over payments to the war contractor on account of termination
claims of subcontractors of such war contractor to such extent and
in such manner as it deems necessary or desirable for the purpose
of assuring the receipt of the benefit of such payments by the
subcontractors.

[(c) Group settlements.

[The Administrator of General Services shall prescribe policies
and methods for the settlement as a group, or otherwise, by any con-
tracting agency of some or all of the termination claims of a war con-
tractor under war contracts with one or more (1) bureaus or divisions
within a contracting agency, (2) contracting agencies, or (3) prime
contractors and subcontractors, to the extent he deems such action
necessary or desirable for expeditious and equitable settlement of such
claims. After consulting with the contracting agencies concerned, the
Administrator of General Services may provide for assigning any war
contractor to a contracting agency for such settlement, and such agency
shall have authority to settle, on behalf of any other contracting
agency, some or all of the termination claims of such war contractor.

[(d) Direct settlement by Contracting agency.

[Any contracting agency may settle directly termination claims of
subcontractors to the extent that it deems such action necessary or
desirable for the expeditious and equitable settlement of such claims.
In making such termination settlements any contracting agency may
discharge the claim of the subcontractor by payment or may purchase
such claim, and may agree to assume, or indemnify the subcontractor
against, any claims by any person in connection with such claim or the
termination settlement. Any contracting agency undertaking to settle
the termination claim of any subcontractor shall deliver to the subcon-
tractor and the war contractor liable to him written notice stating its
acceptance of responsibility for settling his claim and the conditions

123

applicable thereto, which may include the release, or assignment to the
contracting agency, of his claim against the war contractor liable to
him ; upon consent thereto by the subcontractor, the Government shall
become liable for the settlement of his claims upon the conditions
specified in the notice.

[(e) Amount of settlement.

[Any contracting agency may make settlements with subcontractors
in accordance with any of the provisions of this chapter without re-
gard to any limitation on the amount payable by the Government to
the prime contractor.

[(f) Equitable payments.

[If any contracting agency determines that in the circumstances of
a particular case equity and good conscience require fair compensa-
tion for the termination of a war contract to be paid to a subcontractor
who has been deprived of and cannot otherwise reasonably secure such
fail compensation, the contracting agency concerned may pay such
compensation to him although such compensation already has been
included and paid as part of a settlement with another war contractor.

[§ 108. Interim financing.

[(a) Prime contractors.

[It is the policy of the Government, and it shall be the responsibility
of the contracting agencies and the Administrator of General Services,
in accordance with and subject to the provisions of this chapter, to pro-
vide war contractors having any termination claim or claims, pending
their settlement, with adequate interim financing, within thirty days
after proper application therefor.

[(b) Method of financing; amounts payable.

[Each contracting agency shall, to the greatest extent it deems prac-
ticable, make available interim financing through loans and discounts,
and commitments and guaranties in connection therewith, in contem-
plation of or related to termination of war contracts. Where interim
financing is made by advance payments or partial payments, it shall r
insofar as practicable, consist of the following:

[( 1 ) An amount equal to 100 per centum of the amount pay-
able, at the contract price, on account of acceptable items com-
pleted prior to the termination date under the terms of the
contract, or completed thereafter with the approval of the con-
tracting agency : plus

[(2) An amount equal to 90 per centum of the cost of raw
materials purchased parts, supplies, direct labor, and manu-
facturing overhead allocable to the terminated portion of the war
contract ; plus

[(3) A reasonable percentage of other allowable costs, includ-
ing administrative overhead, allocable to the terminated portion
of the war contract not included in the foregoing; plus

[(4) Such additional amounts, if any, as the contracting
agency deems necessary to provide the war contractor with ade-
quate interim financing.

[(5). In lieu of the costs referred to in clauses (2) and (3) of
this subsection, where a detailed ascertainment of such costs is
not suitable to the conditions of any war contractor and is apt to

124

cause delay in the obtaining of interim financing by him, that
portion of such interim financing shall be equal to an amount not
greater than 90 per centum of the estimated costs which are allo-
cable to the terminated part or parts of the war contract or group
of war contracts, and are ascertained in accordance with such
methods and standards as the Administrator of General Services
shall prescribe.

[(6) There shall be deducted from the amount of such interim
financing any unliquidated balances of advance and partial pay-
ments theretofore made to such war contractor, which are allo-
cable to the terminated war contract or the terminated part of the
war contract.

[(c) Evidence to support financing.

[The Administrator of General Services shall prescribe (1) the
types of estimates, certificates, or other evidence to be required to sup-
port such interim financing; (2) the terms and conditions upon which
such interim financing shall be made including the use of standard
forms for agreements with respect to such interim financing to the
extent practicable; (3) the classes of cases in which such interim fi-
nancing shall be refused; and (4) such methods of supervision and
control over such interim financing as he deems necessary or desirable
to assure adequate and speedy interim financing to subcontractors of
the war contractor.

[(d) Penalty for overstatement of claims.

[In case of an overstatement by any war contractor of the amount
due on his termination claim or claims in connection with any interim
financing under this chapter, such contractor shall pay to the United
States, as a penalty, an amount equal to 6 per centum of the amount of
the overstatement, but the Administrator of General Services may
suspend or modify any such penalty if in his opinion the imposition
thereof would be inequitable. Any penalty may be deducted from any
amounts due the war contractor upon such termination claim or
claims, or otherwise, or may be collected from the war contractor by
suit. The obligation to pay any penalty imposed and to repay any
interim financing made or assumed by the United States under this
chapter shall constitute a debt due to the United States within the
meaning of section 191 of Title 31.

[(e) Advance payments as part of termination settlement.

[Any contracting agency may allow any advance pa}Tnents, previ-
ously made or authorized by it in connection with the performance of
a war contract, to be used for payments and expenses related to the
termination settlement of such contract, upon such terms and condi-
tions as it deems necessary or appropriate to protect the interest of
the Government.
[(f) Liquidation of loans, etc., prior to final settlement.

[No interim financing shall be made by any contracting agency
under this chapter unless the terms of such financing provide for the
liquidation by the war contractor of all loans, discounts, advance pay-
ments, or partial payments thereunder not later than the time of final
payment of the amount due on the settlement of the termination claim
or claims of the war contractor involved or such time thereafter as the
contracting agency deems necessary for the liquidation of such interim
financing in an orderly manner.

125

[(g) Settlement of claims; validation of prior financing.

[Any contracting agency may settle, upon such terms and condi-
tions as it deems proper, any claim or obligation due by or to the
Government arising from or related to any interim financing made,
acquired, or authorized by it. Any interim financing made, acquired,
or authorized by any contracting agency before the effective date of
this chapter shall be* valid to the extent it would be authorized under
the provisions of this chapter if made after its effective date.

£§ 109. Advance or partial payments to subcontractors; excessive
payments, interest, liability of war contractor.

[(a) Any contracting agency may make advance or partial pay-
ments to any war contractor on account of any termination claim or
claims, and "may authorize, approve, or ratify any such advance or
partial payments by any war contractor to his subcontractors, upon
such conditions as it deems necessary to insure compliance with the
provisions of subsection (b) of this section. Each contracting agency
shall make final payments from time to time on partial settlements or
on settlements fixing a minimum amount due before complete settle-
ment, or as tentative payments before any settlement of the claim or
claims.

[(b) Where any such advance or partial payment is made to any
war contractor by any contracting agency or by another war contrac-
tor under this section, except a final payment on a partial settlement,
any amount in excess of the amount finally determined to be due
on the termination claim shall be treated as a loan from the Govern-
ment to the war contractor receiving it, and shall be payable upon
demand together with a penalty computed at the rate of 6 per centum
per annum, for the period from the date such excess advance or partial
payment is received to the date on which such excess is repaid or
extinguished. Where the advance or partial payment was made by a
war contractor and authorized, approved, or ratified by any contract-
ing agency, the war contractor making it shall not be liable for any such
excess payment in the absence of fraud on his part and shall receive
payment or credit from the Government for the amount of such excess
payment.

[§ 110. Guarantee of loans, advances, etc., for financing termina-
tion of contracts.

[(a) Any contracting agency is authorized —

[(1) to enter into contracts with any Federal Reserve bank, or
other public or private financing institution, guaranteeing such
financing institution against loss of principal or interest on loans,
discounts, or advances or on commitments in connection there-
with, which such financing institution may make to any war con-
tractor or to any person who is or has been engaged in perform-
ing any operation deemed by such contracting agency to be
connected with or related to war production, for the purpose of
financing such war contractor or other person in connection with
or in contemplation of the termination of one or more such war
contracts or operations : and

[(2) to make, enter into contracts to make, or to participate
with any Government agency, any Federal Reserve bank or pub-

126

lie or private financing institution in making loans, discounts, or
advances, or commitments in connection therewith, for the pur-
pose of financing any such war contractor or other person m con-
nection with or in contemplation of the termination of such war
contracts or operations.
[(b) Any such loan, discount, advance, guaranty, or commitment
in connection therewith may be secured by assignment of, or cove-
nants to assign, some or all of the rights of such war contractor or
other person in connection with the termination of such war contracts
or operations, or in such other manner as the contracting agency may

orescribe.

[(c) Subject to such regulations as the Board of Governors of the
Federal Reserve System may prescribe with the approval of the Ad-
ministrator of General Services, any Federal Reserve bank is au-
thorized to act, on behalf of the contracting agencies, as fiscal agent of
the United States in carrying out the purposes of this chapter.

[(d) This section shall not limit or affect any authority of any con-
tracting agency, under any other statute, to make loans, discounts, or
advances, or commitments in connection therewith or guaranties
thereof.
[§ 111. Advance notice of termination.

[(a) In order to facilitate the efficient use of materials, manpower,
and facilities for war and civilian purposes, each contracting agency —
[(1) shall provide its prime contractors with notice of termina-
tion of their prime contracts as far in advance of the cessation of
work thereunder as is feasible and consistent with the national
security without permitting unneeded production or performance ;
[(2) shall establish procedures whereby prime contractors
shall provide affected subcontractors with immediate notice of
termination; and

[(3) shall permit the continuation of some or all of the work
under a terminated prime contract whenever the agency deems
that such continuation will benefit the Government or is necessary
to avoid substantial injury to the plant or property.
[(b) Whenever a contracting agency hereafter directs a prime con-
tractor to cease or suspend all or a substantial part of the work under
a prime contract, without terminating the contract, then, unless the
contract provides otherwise, (1) the contracting agency shall com-
pensate the contractor for reasonable costs and expenses resulting
from such cessation or suspension, and (2) if the cessation or suspen-
sion extends for thirty days or more, the contractor may elect to treat
it as a termination by delivering written notice of his election so to do
to the contracting agency, at any time before the contracting agency
directs the prime contractor to resume work under the contract.

[(c) The Administrator of General Services shall have no authority
under this chapter to regulate or control the classes of contracts to be
terminated by the contracting agencies.

[§112. Removal and storage of materials,
[(a) Termination inventory.

[It is the policy of the Government, upon the termination of any
war contract, to assure the expeditious removal from the plant of the

127

fear contractor of the termination inventory not to be retained or sold

by the war contractor.

[(b) Statement on material of inventory.

[Any war contractor may submit to the contracting agency con-
cernecf or to any other Government agency designated by the Admin-
istrator of General Services, one or more statements showing the mate-
rials which such war contractor claims to be termination inventory
under one or more war contracts and desires to have removed by the
Government. Such statements shall be prepared in such form and
detail, shall be submitted in such manner, through the prime con-
tractor or otherwise, and shall be supported by such certificates or
other data, as may be prescribed under this chapter.
[(c) Removal and storage by Government agency.

[Within sixty days after the submission of any such statement by
a Avar contractor, or such shorter period as may be prescribed under
this chapter, or within such longer period as the war contractor may
agree, the Government agency concerned (1) shall arrange, upon
such terms and conditions as may be agreed, for the storage by the
war contractor on his own premises or elsewhere of all such claimed
termination inventory which the war contractor does not retain or
dispose of, except any part which may be determined not to be al-
locable to the terminated war contract or contracts, or (2) shall remove
from the plant or plants of the war contractor all of such claimed
termination inventory not retained, disposed of, or stored by the war
contractor or determined not to be allocable to the terminated war
contract or contracts.

[(d) Removal and storage by war contractor.

[Upon the failure of the Government so to arrange for storage by
the war contractor or to remove any termination inventory within the
period specified under subsection (c) of this section, the war con-
tractor, subject to regulations prescribed under this chapter, may
remove some or all of such termination inventory from his plant or
plants and may store it on his own premises or elsewhere for the
account and at the risk and expense of the Government, using reason-
able care for its transportation and preservation. If any war con-
tractor intends so to remove any claimed termination inventory, he
shall deliver to the Government agency concerned written notice of
the date fixed for removal and a statement showing the quantities and
condition of the materials so to be removed, certified on behalf of the
war contractor to have been prepared in accordance with a concurrent
physical inventory of such materials. Such notice and statement shall
be delivered at least twenty days in advance of the date fixed for re-
moval and may be delivered before or after the expiration of the
period specified under subsection (c) of this section. If the Govern-
ment agency fails to check such materials, at or before the time of
their removal by the war contractor, a certificate of the war contractor
specifying the materials shown on such statement which were so re-
moved, and filed with the Government agency concerned within thirty
days after the date fixed for removal, shall constitute prima facie
evidence against the United States as to the quantities and condition
of the materials so removed, and the fact of their removal.

128

[(e) Acquisition by Government agency of inventory material;
liability.

[Notwithstanding any other provisions of law, but subject to sub-
section (h) of this section, the contracting agency concerned or the
Administrator of General Services, or any Government agency desig-
nated by him, on behalf of the United States, may, by the exercise of
any contract right or otherwise, acquire and take possession of any
termination inventory of any war contractor, and any materials re-
moved by the Government or stored for its account under subsections
(c) and (d) of this section, whether or not such materials are finally
determined not to constitute termination inventory. With respect to
any such materials, the Government shall be liable to any war con-
tractor concerned only for their return to such war contractor or for
their disposal value at the time of their removal or for the proceeds
realized by the Government from their disposal, at the election of the
Government agency concerned, unless the Government agency and the
war contractor a^ree or have agreed on a different basis. Any amount
so paid or payable to a war contractor for materials allocable to a
terminated war contract shall be credited against the termination
claim under such contract but shall not otherwise affect the amount
due on the claim, unless the Government agency concerned and the
war contractor agree or have agreed otherwise. Any materials to
which the Administrator of General Services takes title under this
section shall be delivered for disposal to any appropriate Government
agency authorized to make such disposal.

[(f) Postponement or delay of termination settlement.

[No contracting agency shall postpone or delay any termination
settlement beyond the period specified in subsection (c) of this section
for the purpose of awaiting disposal by the war contractor or the
Government of any termination inventory reported in accordance
with subsection (b) of this section.

[(g) Government-owned machinery.

[Whenever any war contractor no longer requires, for the perform-
ance of any war contract, any Government-owned machinery, tools, or
equipment installed in his plant for the performance of one or more
war contracts, the Government agency concerned, upon written de-
mand by the war contractor, and within sixty days after such demand
or such other period as may be prescribed under this chapter, and
upon such conditions as may be so prescribed, shall remove or provide
for the removal of such machinery, tools, or equipment from such
plant, unless the Government agency concerned and the war contractor,
by facilities contract or otherwise, have made or make other provisions
for the retention, storage, maintenance, or disposition of such ma-
chinery, tools or equipment. The Government agency concerned may
waive or release on behalf of the United States any obligation of the
war contractor with respect to such machinery, tools, or equipment
upon such terms and conditions as the agency deems appropriate.
Upon the failure of the Government so to remove or provide for re-
moval of any such machinery, tools, or equipment, the war contrac-
tor, subject to regulations prescribed under this chapter, may remove

129

all or part of such machinery, tools, or equipment from his plant and
may store it on his own premises or elsewhere, for the account and at
the risk and expense of the Government, using reasonable care for its
transportation and preservation.

[(h) Limitation on Government acquisition of inventories.

[Nothing in this chapter shall limit or affect the authority of the
Department of the Army, Department of the Air Force, Navy De-
partment, or Maritime Commission, respectively, to take over any
termination inventories and to retain them for their use for any pur-
pose or to dispose of such termination inventories for the purpose of
war production, or to authorize any war contractor to retain or dispose
of such termination inventories for the purpose of war production.

[(i) Removal and storage by war contractor at own risk.

[Nothing in this section shall be construed to prevent the removal
and storage of any termination inventory by any war contractor, at his
own risk, at any time after termination of any war contract to which
it is allocable.

[§ 113. Appeals.

[(a) Failure to settle claims by agreement; preparation of find-
ings ; notice to war contractor.

[Whenever the contracting agency responsible for settling any
termination claim has not settled the claim by agreement or has so
settled only a part of the claim, (1) the contracting agency at any time
may determine the amount due on such claim or such unsettled part,
and prepare written findings indicating the basis of the determination,
and deliver a copy of such findings to the war contractor, or (2) if the
termination claim has been submitted in the manner and substantially
the form prescribed under this chapter, the contracting agency, upon
written demand by the war contractor for such findings, shall deter-
mine the amount due on the claim or unsettled part and prepare and
deliver such findings to the war contractor within ninety days after
the receipt by the agency of such demand. In preparing such findings,
the contracting agency may require the war contractor to furnish such
information and to submit to such audits as may be reasonably neces-
sary for that purpose. Within thirty days after the delivery of any
such findings, the contracting agency shall pay to the war contractor
at least 90 per centum of the amount thereby determined to be due,
after deducting the amount of any outstanding interim financing
applicable thereto.

[(b) Rights of war contractor.

[Whenever any war contractor is aggrieved by the findings of a
contracting agency on his claim or part thereof or by its failure to
make such findings in accordance with subsection (a) of this section,
he may bring suit against the United States for such claim or such
part thereof, in the Court of Claims or in a United States district
court, in accordance with subsection (20) of section 41 of Title 28,
except that, if the contracting agency is the Reconstruction Finance
Corporation, or any corporation organized pursuant to the Recon-
struction Finance Corporation Act, or any corporation owned or con-

130

trolled by the United States, the suit shall be brought against such
corporation in any court of competent jurisdiction in accordance with
existing law.

[(c) Procudure.

[Any proceeding under subsection (b) of this section shall be gov-
erned by the following conditions :

[(1) When any contracting agency provides a procedure within
the agency for protest against such findings or for other appeal there-
from by the war contractor, the war contractor, before proceeding
under subsection (b) of this section, (i) in his discretion may resort
to such procedure within the time specified in his contract or, if no
time is specified, within thirty days after the delivery to him of the
findings; and (ii) shall resort to such procedure for protest or other
appeal to the extent required by the Administrator of General Serv-
ices, but failure of the contracting agency to act on any such required
protest or appeal within thirty days shall operate as a refusal by the
agency to modify its findings. Any revision of the findings by the con-
tracting agency, upon protest or appeal within the agency, shall be
treated as the findings of the agency for the purpose of appeal or suit
under subsection (b) of this section. Notwithstanding any contrary
provision in any war contract, no war contractor shall be required to
protest or appeal from such findings within the contracting agency
except in accordance with this paragraph.

[(2) A war contractor may initiate proceedings in accordance with
subsection (b) of this section (i) within ninety days after delivery
to him of the findings by the contracting agency, or (ii) in case of
protests or appeal within the agency, within ninety days after the
determination of such protest or appeal, or (iii) in case of failure to
deliver such findings, within one year after his demand therefor. If he
does not initiate such proceedings within the time specified, he shall be
precluded thereafter from initiating any proceedings in accordance
with subsection (b) of this section, and the findings of the contracting
agency shall be final -and conclusive, or if no findings were made, he
shall be deemed to have waived such termination claim.

[(3) Notwithstanding any contrary provision in any war contract,
the court shall not be bound by the findings of the contracting agency,
but shall treat such findings as prima facie correct, and the burden
shall be on the war contractor to establish that the amount due on his
claim or part thereof exceeds the amount allowed by the findings of the
contracting agency. Whenever the court finds that the war contractor
failed to negotiate in good faith with the contracting agency for the
settlement of his claim or part thereof before appeal or suit thereon,
or failed to furnish to the agency any information reasonablv re-
quested by it regarding his termination claim or part thereof, or failed
to prosecute diligently any protest or appeal required to be taken
under subsection (c) (1) (ii) of this section, the court (i) may refuse
to receive in evidence any information not submitted to the contracting
agency; (ii) may deny interest on the claim or part thereof for such
period as it deems proper; or (iii) may remand the case to the con-
tracting agency for further proceedings upon such terms as the court
may prescribe. Unless the case is remanded, the court shall enter the

131

appropriate award or judgment on the basis of the law and facts, and
may increase or decrease the amount allowed by the findings of the
contracting agency.

[(4) Any such proceedings shall not affect the authority of the
contracting agency concerned to make a settlement of the termination
claim, or any part thereof, by agreement with the war contractor at
any time before such proceedings are concluded.

[(d) Omitted.

[(e) Arbitration.

[The contracting agency responsible for settling any claim and the
war contractor asserting the claim, by agreement, may submit all or
any part of the termination claim to arbitration, without regard to
the amount in dispute. Such arbitration proceedings shall be governed
by the provisions of United States Arbitration Act to the same extent
as if authorized by an effective agreement in writing between the
Government and the war contractor. Any such arbitration award shall
be final and conclusive upon the United States to the same extent as
a settlement under subsection (c) of section 106 of this title, but shall
not be subject to approval by any settlement review board.
[(f) Conclusiveness of decisions.

[Whenever any dispute exists between any war contractor and a
subcontractor regarding any termination claim, either of them, by
agreement with the other, may submit the dispute to a contracting
agency for mediation or arbitration whenever authorized by the
agency or required by the Administrator of General Services.

[Any award or decision in such proceedings shall be final and con-
clusive as to the parties so submitting any such dispute and shall not
be questioned by the United States in settling any related claim, in the
absence of fraud or collusion.

[§ 114. Court of Claims.

[(a) Appointment of auditors.

[For the purpose of expediting the adjudication of termination
claims, the Court of Claims is authorized to appoint not more than
ten auditors.

[(b) Procedure.

[The Court of Claims, on motion of either of the parties, or on its
own motion, may summon any and all persons with legal capacity to be
sued to appear as a party or parties in any suit or proceeding or any
nature whatsoever pending in said court to assert and defend their in-
terests, if any, in such suits or proceedings, within such period of time
prior to judgment as the Court of Claims shall prescribe. If the name
and address of any such person is known or can be ascertained by rea-
sonable diligence, and if he resides within the jurisdiction of the United
States, he shall be summoned to appear by personal service; but if any
such person resides outside of the jurisdiction of the United States, or is
unknown, or if for any other good and sufficient reason appearing to the
court personal service cannot be had, he may be summoned by publica-
tion, under such rules as the court may adopt, together with a copy of
the summons mailed by registered mail to such person's last known ad-

132

.e Court of Claims may. upon motion of the Attorney General,
in any suit or proceeding where there may be any number of persons
having possible interests therein, notify such persons to appear to as-
sert and defend such interests. I'pon failure so to appear, any and all
ms or interests in claims of any such person against the United
States, in respect of the subject matter of such suit or proceeding, shall
forever be barred and the court shall have jurisdiction to enter judg-
ment pro confesso upon any claim or contingent claim asserted on be-
half of the United States against any person who. having been duly
served with summons, fails to respond thereto, to the same extent and
with like etfect as if such person had appeared and had admitted the
truth of all allegations made on behalf of the United States. Upon
appearance by any peison pursuant to any such summons or notice, the
case as to such person shall, for all purposes, be treated as if an in-
dependent proceeding has been instituted by such person pursuant to
section 250 of Title 28, and as if such independent proceeding had then
been consolidated, for purposes of trial and determination, with the
se in res t c f which the summons or notice was issued, except that
the United States shall not be heard upon any counterclaims, claims
for damages or other demands whatsoever against such person, other
than claims and contingent claims for the recovery of money hereafter
paid by the United States in respect of the transaction or matter which
constitute - - subject matter of such case, unless and until such person
shall -assert therein a claim, or an interest in a claim, against the United
States, and the Court of Claims shall have jurisdiction to adjudicate.
as between any and all adverse claimants, their respective several in-
sts in any matter in suit and to award several judgments in accord-
ance therewith.

[(c) Jurisdiction.

[ The jurisdiction of the Court of Claims shall not be affected by
-this chapter except to the extent necessary to give effect to this chap-
ter, and no person shall recover judgment on any claim, or on any
interest in any claim, in said court which such person would not
have had a right to assert in said court if this section had not been
enacted.

[§ 115. Personal financial liability of contracting officers.

[ i Whenever any payment is made from Government funds to
any war contractor or ot: n as an advance, partial or final pay-

ment on any termination claim, or pursuant to any loan, guaranty, or
agreement for the purchase of any loan, or any commitment in con-
nection therewith, entered into by the Government, no officer or other
Government agent authorizing or approving such payment or settle-
ment, or certifying the voucher for such payment, or making the
payment in accordance with a duly certified voucher, shall be per-
sonally liable for such payment, in the absence of fraud on his part. In
settling the accounts of any disbursing officer, the General Account-
ing Office shall allow any such disbursements made by him notwith-
standing any other provisions of law.

[ h For the purpose of making termination settlements or interim
financing, any Government agency is authorized to rely upon such
certificate r contractors as it deems proper and to permit war

133

contractors and other persons to rely upon such certificates without
financial liability in the absence of fraud on their pan.

[§116. Functions of General Accounting Office; certification of
fraudulent settlements to Department of Justice; re-
ports to Congress.

[(a) Any other provision of law notwithstanding, the function of
the General Accounting Office with respect to any termination settle-
ment made, authorized, ratified, or approved by a contracting agency
shall be confined to determining, after final settlement, (1) whether
the settlement payments to the war contractor were made in accord-
ance with the settlement, and (2) whether the records transmitted
to it. or other information.- warrant a reasonable belief that the settle-
ment was induced by fraud. For this purpose the General Accounting
Office shall have the authority to examine any records maintained by
any contracting agency or by any war contractor relating to any
termination settlement.

[(b) Whenever the Comptroller General is convinced that any set-
tlement was induced by fraud, he shall so certify, together with all
the facts relating thereto, to the Department of Justice, to the Ad-
ministrator of General Services, and to the contracting agency con-
cerned. Upon receipt of such certificate (1) the Department of .Justice
shall make an investigation to determine whether such settlement was
induced by fraud, and ( '1 ) until the Department of Justice notifies
the contracting agency that in its opinion the facts do not support the
belief that the settlement was induced by fraud, the contracting
agency, by set-off or otherwise, may withhold, from amounts owing
to the war contractor by the United States under such settlement or
otherwise, the amount of the settlement, or the portion thereof, which
in the opinion of the Comptroller General as stated in his certificate,
was affected by the fraud. In any such case the Department of Justice
shall take such action as it deems appropriate to recover payments
made to such war contractor. The General Accounting Office shall not
suspend credit to any disbursing officer on any disbursements made
by him under such settlement in the absence of fraud on his part.

[(c) The Comptroller General may investigate the settlements com-
pleted by each contracting agency for the purpose of reporting to
the Congress from time to time on —

[(1) whether the settlement methods and procedures employed
by such agency are of a kind and type designed to result in expe-
ditious and fair settlements in accordance with and subject to the
provisions of this chapter and the orders and regulations of the
Administrator of General Services:

[(2) whether such methods and procedures are followed by
such agency with care and efficiency : and

[(3) whether such methods and procedures adequately protect
the interest of the Government.
[If in any such report the Comptroller General shall find that the
settlement methods and procedures fail to meet the foregoing stand-
ards, he shall make suggestions and recommendations tosuclfagency
for the improvement of "such methods and procedures and to the^Con-
gress for any additional legislation needed to carry out the policies of

134

this chapter. At least thirty days before filing any such report with
the Congress, the Comptroller General shall deliver a copy thereof
to the agency concerned and the Administrator of General Services,
and shall forward to the Congress together with such report any com-
ments of such agency with respect thereto.

[(d) The jurisdiction of the Comptroller General of the United
States shall not be affected by this chapter except to the extent neces-
sary to give effect to the specific provisions thereof.

[§ 117. Defective, informal, and quasi contracts; termination date
for filing claims.

[(a) Where any person has arranged to furnish or furnished to a
contracting agency or to a war contractor- any materials, services, or
facilities related to the prosecution of the war, without a formal con-
tract, relying in good faith upon the apparent authority of an officer
or agent of a contracting agency, written or oral instructions, or any
other request to proceed from a contracting agency, the contracting
agency shall pay such person fair compensation therefor.

[(b) Whenever any formal or technical defect or omission in any
prime contract, or in any grant of authority to an officer or agent of
a contracting agency who ordered any materials, services, and facili-
ties might invalidate the contract or commitment, the contracting
agency (1) shall not take advantage of such defect or omission; (2)
shall amend, confirm, or ratify such contract or commitment without
consideration in order to cure such defect or omission; and (3) shall
make a fair settlement of any obligation thereby created or incurred
by such agency, whether expressed or implied, in fact or in law, or in
the nature of an implied or quasi contract.

[(c) Where a contracting agency fails to settle by agreement any
claim asserted under this section, the dispute shall be subject to the
provisions of section 113 of this title.

[(d) The Administrator of General Services shall require each con-
tracting agency to formalize all such obligations and commitments
within such period as the Administrator of General Services deems
appropriate. No person shall be entitled to recover compensation, to
receive a settlement of any alleged obligation, or to obtain the benefit
of any amendment, confirmation, ratification, or formalization of
any alleged contract or commitment under the provisions of subsec-
tions (a), (b), (c), or (d) of this section, unless such person shall, on
or before one hundred and eighty days after June 28, 1954, have filed
a claim therefor with the contracting agency.

[§ 118. Administration.

[(a) Records and forms.

[The Administrator of General Services shall establish policies for
such supervision and review within the contracting agencies of termi-
nation settlements and interim financing as he deems necessary and
appropriate to prevent and detect fraud and to assure uniformity in
administration and to provide for expeditious settlements. For this
purpose he shall prescribe ( 1 ) such records to be prepared by the con-
tracting agencies and by war contractors as he deems necessary in con-
nection with such settlements and interim financing; and (2) the
records in connection therewith to be transmitted to the General Ac-

135

counting Office. He shall seek to reduce the amount of record keeping,
reporting, and accounting in connection with the settlement of termi-
nation claims and interim financing to the minimum compatible with
the reasonable protection of the public interest. Each contracting
agency shall prescribe forms for use by war contractors in connection
with termination settlements and interim financing to the extent it
deems necessary and feasible.

[(b) Repealed. Oct. 31, 1951, ch. 654, § 1 (111) 65 Stat. 705.

[(c) Advance notice on cut-backs.

[The Administrator of General Services, by regulation, shall pro-
vide for making available to any interested Government agency such
advance notice and other information on cut-backs in war production
resulting from terminations or failures to renew or extend war con-
tracts, as he deems necessary and appropriate.

[(d) Investigations.

[The Administrator of General Services shall make such investiga-
tions as he deems necessary or desirable in connection with termina-
tion settlements and interim financing. For this purpose he may utilize
the facilities of any existing agencies and if he determines that the
facilities of existing agencies are inadequate, he may establish a unit
in the General Services Administration to supplement and facilitate
the work of existing agencies. He shall report to the Department of
Justice any information received by him indicating any fraudulent
practices, for appropriate action.

[(e) Certification of fraudulent settlements to Department of
Justice.

[Whenever any contracting agency or the Administrator of Gen-
eral Services believes that any settlement was induced by fraud, the
agency or Administrator of General Services shall report the facts to
the Department of Justice. Thereupon, (1) the Department of Justice
shall make an investigation to determine whether such settlement was
induced by fraud, and (2) until the Department of Justice notifies the
contracting agency that in its opinion the facts do not support the be-
lief that the settlement was induced by fraud, the contracting agency,
by set-off or otherwise, may withhold, from amounts owing to the war
contractor by the United States under such settlement or otherwise,
the amount of the settlement, or the portion thereof, which, in its
opinion, was affected by the fraud. In any such case the Department
of Justice shall take such action as it deems appropriate to recover
payments made to such war contractor.

[§ 119. Fraudulent claims, vouchers, statements, etc. ; jurisdiction.

[Every person who makes or causes to be made, or presents or
causes to be presented to any officer, agent, or employee of any Gov-
ernment agency any claim, bill, receipt, voucher, statement, account,
certificate, affidavit, or deposition, knowing the same to be false,
fraudulent, or fictitious or knowing the same to contain or to be
based on any false, fraudulent, or fictitious statement or entry,
or who shall cover up or conceal any material fact, or who shall use or
engage in any other fraudulent trick, scheme, or device, for the pur-

66-474 O - 76 - 10

136

pose of securing or obtaining, or aiding to secure or obtain, for any
person any benefit, payment, compensation, allowance, loan, advance,
or emolument from the United States or any Government agency in
connection with the termination, cancellation, settlement, payment,
negotiation, renegotiation, performance, procurement, or award of a
contract with the United States or with any other person, and every
person who enters into an agreement, combination, or conspiracy so to
do, (1) shall pay to the United States an amount equal to 25 per
centum of any amount thereby sought to be wrongfully secured or ob-
tained but not actually received, and (2) shall forfeit and refund any
such benefit, payment, compensation, allowance, loan, advance, and
emolument received as a result thereof and (3) shall in addition pay
to the United States the sum of $2,000 for each such act, and double
the amount of any damage which the United States may have sus-
tained by reason thereof, together with the costs of suit.

[The several district courts of the United States, the District of
Columbia, the several district courts of the Territories of the United
States, within whose jurisdictional limits the person, or persons, doing
or committing such act, or any one of them, resides or shall be found,
shall, wheresoever such act may have been done or committed, have
full power and jurisdiction to hear, try, and determine such suit, and
such person or persons as are not inhabitants of or found within the
district in which suit is brought may be brought in by order .of the
court to be served personally or by publication or in such other reason-
able manner as the court may direct.

[§ 120. Powers and duties of contracting agencies.

[(a) Limitation.

[Each contracting agency shall have authority, notwithstanding
any provisions of law other than contained in this chapter, (1) to
make any contract necessary and appropriate to carry out the provi-
sions of this chapter; (2) to amend by agreement any existing con-
tract, either before or after notice of its termination, on such terms
and to such extent as it deems necessary and appropriate to carry out
the provisions of this chapter; and (3) in settling any termination
claim, to agree to assume, or indemnify the war contractor against,
any claims by any person in connection with such termination claims
or settlement. This subsection shall not limit or affect in any way any
authority of any contracting agency under First War Powers Act,
1941, or under any other statute.

[(b) Evidence required; conclusiveness of determinations.

[Any contracting agency may prescribe the amount and kind of
evidence required to identify any person as a war contractor, or any
contract, agreement, or purchase order as a war contract for any of
the purposes of this chapter. Any determination so made that any per-
son is a war contractor, or that any contract, agreement, or purchase
order is a war contract, shall be final and conclusive for any of the
purposes of this chapter.

[(c) Appropriations.

[There are authorized to be appropriated such sums as may be
necessary for administering the provisions of this chapter.

137

[(d) Validation of prior settlements.

[All policies and procedures relating to termination of war con-
tracts, termination settlements, and interim financing, prescribed by
the Secretary of the Treasury or any contracting agency, in effect
upon the effective date of this chapter, and not inconsistent with this
chapter, shall remain in full force and effect unless and until super-
seded by the Administrator of General Services in accordance with
this chapter, or by regulations of the contracting agency not incon-
sistent with this chapter or the policies prescribed by the Administra-
tor of General Services.

[(e) Impairment of contract.

[Nothing in this chapter shall be deemed to impair or modify any
war contract or any term or provision of any war contract or any
assignment of any claim under a war contract, without the consent of
the parties thereto, if the war contract, or the term, provision, or
assignment thereof, is otherwise valid.

[(f) Aid to war contractors.

[Any contracting agency may authorize or direct its officers and
employees, as a part of their official duties, to advise, aid, and assist
war contractors in preparing and presenting termination claims, in
obtaining interim financing, and in related matters, to such extent as
it deems desirable. Such advice, aid or assistance shall not constitute a
violation of section 198 of Title 18 or of any other law, provided the
officer or employee does not receive therefor benefit or compensation of
any kind, directly or indirectly, from any war contractor.

[§ 121. Administrator of General Services ; additional duties.

[In addition to his other functions under this chapter, the Admin-
istrator of General Services shall —

[(a) promote the training of personnel for termination settle-
ment and interim financing by contracting agencies, war contrac-
tors, and financing institutions ;

[(b) Omitted.

[(c) promote decentralization of the administration of term-
ination settlements and interim financing by fostering delegation
of authority within contracting agencies and to war contractors,
to the extent he deems necessary and feasible ; and

[(d) consult with war contractors through advisory commit-
tees or such other methods as he deems appropriate.

[§ 122. Use of appropriated funds.

[Any contracting agency is authorized —

[(a) to use for interim financing, the payment of claims, and
for any other purposes authorized in this chapter any funds which
have heretofore been appropriated or allocated or which may
hereafter be appropriated or allocated to it, or which are or may
become available to it, for such purposes or for the purposes of
war production or war procurement ;

[(b) to use any such funds appropriated, allocated, or avail-
able to it for expenditures for or in behalf of any other contract-
ing agency for the purposes authorized in this chapter; and

138

[(c) to determine by agreement, joint estimate, or any other
method authorized by the Administrator of General Services, the
part of any expenditure made pursuant to subsection (b) of this
section to be paid by each contracting agency concerned and to
make transfers of funds between such contracting agencies ac-
cordingly. Transfers of funds between appropriations carried
upon the books of the Treasury shall be made by the Administra-
tor of General Services in accordance with joint requests of the
contracting agencies involved.

[§ 123. Delegation of authority by Administrator of General
Services.

[(a) The Administrator of General Services may delegate any au-
thority and discretion conferred upon him by this chapter to such
officers and agencies of the General Services Administration as he
may designate, and may delegate such authority and discretion, upon
such terms and conditions as he may prescribe, to the head of any Gov-
ernment agency to the extent necessary to the handling and solution
of problems peculiar to that agency.

[(b) The head of any Government agency may delegate any author-
ity and discretion conferred upon him or his agency by or pursuant
to this chapter to any officer, agent, or employee of such agency or to
any other Government agency, and may authorize successive redelega-
tions of such authority and discretion.

[(c) Any two or more Government agencies may exercise jointly
any authority and discretion conferred upon each of them individu-
al lv by or pursuant to this chapter.

[(d) Nothing in this chapter shall prevent the Administrator of
General Services from exercising any authority conferred upon him
by any other statute.

[§124. Effective date; applicability to lend-lease contracts.

[(a) This chapter shall become effective twenty days after July 1,
1944. With the exception of the provisions of paragraphs (b)-(e)
of section 112 of this title, and sections 106 and 110, and 113 of this
title, this chapter shall be applicable in the case of any terminated
war contract which has been finally settled at or before the effective
date of this chapter.

[(b) Nothing in this chapter shall limit or affect any authority
conferred by sections 411 to 419 of Title 22, or Acts supplemental
thereto.

[§ 125. Exemption of certain contracts outside continental United
States or in Alaska.

[Subject to policies prescribed by the Administrator of General
Services, any contracting agency may exempt from some or all of the
provisions of this chapter (a) any war contract made or to be per-
formed outside the continental limits of the United States or in
Alaska, or (b) any termination inventory situated outside of the con-
tinental limits of the United States or in Alaska, or (c) any modifica-
tion of a war contract pursuant to its terms for the purpose of chang-
ing plans or specifications applicable to the work without substantially
reducing its extent. J

139

TITLE 42.— THE PUBLIC HEALTH AND WELFARE,
UNITED STATES CODE

Chapter 6A.— THE PUBLIC HEALTH SERVICE

SUBCHAPTER I. — ADMINISTRATION

§211a. * * *

*******

[§211b. Promotion of commissioned officers,
[(a) Temporary promotions prior to July 1, 1948.

[Except as provided in the third and fourth paragraphs of this
section, no promotion shall be made under section 211 of this title,
prior to July 1, 1948. Until that date officers of the Regular Corps may
receive temporary promotions to higher grades with the pay and
allowances thereof pursuant to section 211(a)(1) of this title, in
force prior to February 28, 1948, notwithstanding the termination,
prior to such date, of the war and of the national emergencies pro-
claimed by the President. Any officer holding, on June 30, 1948, an ap-
pointment pursuant to such section to a higher temporary grade shall
continue in such grade until such appointment is terminated, as the
President may direct.

[(b) Service credit.

[Effective as of February 28, 1948, each officer of the Regular Corps
on such date, in addition to the credit he has under preexisting legis-
lation for purposes of promotion, shall be credited with three years of
service.

[(c) Promotion based on years of service ; effective date ; examina-
tion; service credit.

[Officers of the Regular Corps who have, or who on or before July 1,
1948, will have, the years of service prescribed in paragraph (2) of
section 211(d) of this title, for promotion to the senior assistant, full,
or senior grade, shall be recommended to the President for such pro-
motion, to be effective as of July 1, 1948, whether or not vacancies
exist in such grade. Such promotions shall be made without examina-
tion, except that no promotions shall be made to the senior grade or
any grade immediately below a restricted grade until the officer is
found qualified for promotion pursuant to subsection (c) of section 211
of this title. No promotion shall be made pursuant to this paragraph to
any grade in any professional category if such grade has been made
a restricted grade pursuant to subsection (b) of section 211 of this
title. For purposes of seniority an officer promoted under this para-
graph shall be credited with the years of service in the grade to which
promoted equal to the excess of his years of service on the date of
promotion over the years of service required for promotion to such
grade under paragraph (2) of section 211(d) of this title.

140

in such grade. For purposes of promotion and seniority in grade, an
officer promoted under this paragraph shall be credited with the years
of service equal to the excess of his years of service on the date of pro-
motion over four years.

[(d) Service for purpose of seniority.

[For purposes of seniority, any officer of the Regular Corps of the
Public Health Service on February 28, 1948, shall be considered as
having had service in the grade which he holds on such date equal to
the excess of the service credited to him for promotion purposes over
the length of service required under section 211(d) (2) of this title,
for promotion to such grade.

[(e) Term or tenure of office unaffected prior to July 1, 1948.

[Except as provided in the third and fourth paragraphs of this sec-
tion, the provisions of this section shall not, prior to July 1, 1948,
affect the term or tenure of office (including any office held under
temporary promotion) of any commissioned officer of the Service in
office upon February 28, 1948. j

Chapter 9.— HOUSING OF PERSONS ENGAGED IN NA-
TIONAL DEFENSE

SUBCHAPTER IX. DEFEXSE HOUSING AND COMMUNITY FACILITIES AND

SERVICES

[§ 1592. Authority of Administrator.

[Subject to the provisions and limitations of sections 1591 to 1591c
of this title, and of this subchapter, the Housing and Home Finance
Administrator (hereinafter referred to as the "Administrator") is
authorized to provide housing in any areas (subject to the provisions
of section 1591 of this title) needed for defense workers or military
personnel or to extend assistance for the provision of, or to provide,
community facilities or services required in connection with national
defense activities in any area which the President, pursuant to the
authority contained in said section, has determined to be critical de-
fense housing area.]

TITLE 50, APPENDIX.— WAR AND NATIONAL DEFENSE,

U.S. CODE

TRADING WITH THE ENEMY ACT OF 1917

(Act October 6, 1917, Ch. 106, 40 Stat. 411)

§ 9. Claims to property transferred to custodian; notice of claim ;
filing; return of property; suits to recover; sale of claimed
property in time of war or during national emergency.

(a) * * *
*******

141

[(e) Xo money or other property shall be returned nor any debt
allowed under this section to any person who is a citizen or subject
of any nation which was associated with the United States in the
prosecution of the war, unless such nation in like case extends recipro-
cal rights to citizens of the United States ; Provided, That any arrange-
ment made by a foreign nation for the release of money and other
property of American citizens and certified by the Secretary of State
to the Attorney General as fair and the most advantageous arrange-
ment obtainable shall be regarded as meeting this requirement ; nor
in any event shall a debt be allowed under this section unless it
was owing to and owned by the claimant prior to October 6, 1917,
and as to claimants other than citizens of the United States unless
it arose with reference to the money or o*her property held by the
Alien Property Custodian or Treasurer of the United States here-
under; nor shall a debt be allowed under this section unless notice of
the claim has been filed, or application therefor has been made, prior
to the date of the enactment of the Settlement of War Claims Act of
1928.]

SALE OF SURPLUS WAR-BUILT VESSELS

(Act Mar. 8. 1946. Ch. 82, 60 Stat. 41)
*******
[§ 1742. Price adjustment on prior sales to citizens,
[(a) Form, manner, and time of application.

[A citizen of the United States who on the date of the enactment
of this Act [March 8, 1946]—

[(1) owns a vessel which he purchased from the Commission
prior to such date, and which was delivered bv its builder after
December 31, 1940; or

[(2) is party to a contract with the Commission to purchase
from the Commission a vessel, which has not yet been delivered
to him ; or

[(3) owns a vessel on account of which a construction-differen-
tial subsidy was paid, or agreed to be paid, by the Commission
under section 504 of the Merchant Marine Act,' 1936, as amended
[section 1154 of Title 46], and which was delivered by its builder
after December 31, 1940 ; or

142

under this section in respect of any vessel the contract for the con-
struction of which was made after September 2, 1945, under the provi-
sions of title V [subchapter V of chapter 27 of Title 46] (including
section 504 [section 1154 of Title 46]) or title VII of the Merchant
Marine Act, 1936, as amended [subchapter VII of chapter 27 of
Title 46].

[(b) Determination of amount.

[Such adjustment shall be made, as hereinafter provided, by treat-
ing the vessel as if it were being sold to the applicant on the date of
the enactment of this Act [March 8, 1946], and not before that time.
The amount of such adjustment shall be determined as follows:

[ ( 1 ) The Commission shall credit the applicant with the excess
of the cash payments made upon the original purchase price of the
vessel over 25 per centum of the statutory sales price of the vessel
as of such date of enactment [March 8, 1946]. If such pay-
ment was less than 25 per centum of the statutory sales price
of the vessel, the applicant shall pay the difference to the
Commission.

[(2) The applicant's indebtedness under any mortgage to the
United States with respect to the vessel shall be adjusted.

[(3) The adjusted mortgage indebtedness shall be in an amount
equal to the excess of the statutory sales price of the vessel as of
the date of the enactment of this Act [March 8, 1946] over the
sum of the cash payment retained by the United States under
paragraph (1) plus the readjusted trade-in allowance (deter-
mined under paragraph (7) ) with respect to any vessel exchanged
by the applicant on the original purchase. The adjusted mortgage
indebtedness shall be payable in equal annual installments there-
after during the remaining life of such mortgage with interest on
the portion of the statutory sales price remaining unpaid at the
rate of 3% per centum per annum.

[(4) The Commission shall credit the applicant with the excess,
if any, of the sum of the cash payments made by the applicant
upon the original purchase price of the vessel plus the readjusted
trade-in allowance (determined under paragraph (7)) over the
statutory sales price of the vessel as of the date of the enactment
of this Act [March 8, 1946] to the extent not credited under
paragraph (1).

[(5) The Commission shall also credit the applicant with an
amount equal to interest at the rate of 3% per centum per annum
(for the period beginning with the date of the original delivery
of the vessel to the applicant and ending with the date of the en-
actment of this Act [March 8, 1946] ) on the excess of the original
purchase price of the vessel over the amount of any allowance
allowed by the Commission on the exchange of any vessel on such
purchase; the amount of such credit first being reduced by any
interest on the original mortgage indebtedness accrued up to such
date of enactment and unpaid. Interest so accrued and unpaid
shall be canceled.

[(6) The applicant shall credit the Commission with all
amounts paid by the United States to him as charter hire for use

143

of the vessel (exclusive of service, if any, required under the terms
of the charter) under any charter party made prior to the date of
the enactment of this Act [March 8, 1946], and any charter hire
for such use accrued up to such date of enactment and unpaid shall
be canceled: and the Commission shall credit the applicant with
the amount that would have been paid by the United States to the
applicant as charter hire for bare-boat use of vessels exchanged
by the applicant on the original purchase (for the period begin-
ning with date on which the vessels so exchanged were delivered
to the Commission and ending with the date of the enactment of
this Act [March 8, 1946] ) .

[(7) The allowance made to the applicant on any vessel ex-
changed by him on the original purchase shall be readjusted so as
to limit such allowance to the amount provided for under section
8 [section 1741 of this Appendix] .

[(8) There shall be subtracted from the sum of the credits in
favor of the Commission under the foregoing provisions of this
subsection the amount of any overpayments of Federal taxes by
the applicant resulting from the application of subsection: (c) (1)
of this section, and there shall be subtracted from the sum of the
credits in favor of the applicant under the foregoing provisions
of this subsection the amount of any deficiencies in Federal taxes
of the applicant resulting from the application of subsection
(c)(1) of this section. If, after making such subtractions, the sum
of the credits in favor of the applicant exceeds the sum of the
credits in favor of the Commission, such excess shall be paid by
the Commission to the applicant. If, after making such subtrac-
tions, the sum of the credits in favor of the Commission exceeds
the sum of the credits in favor of the applicant, such excess shall
be paid by the applicant to the Commission. Upon such payment
by the Commission or the applicant, such overpayments shall be
treated as having been refunded and such deficiencies as having
been paid.
[For the purposes of this subsection, the purchase price of a vessel on
account of which a construction-differential subsidy was paid or
agreed to be paid under section 504 of the Merchant Marine Act, 1936,
as amended [section 1154 of Title 46], shall be the net cost of the
vessel to the owner.

[(c) Conditions binding on applicant.

[An adjustment shall be made under this section only if the appli-
cant enters into an agreement with the Commission binding upon the
citizen applicant and any affiliated interest to the effect that—

[(1) depreciation and amortization allowed or allowable with
respect to the vessel up to the date of the enactment of this Act
[March 8, 1946] for Federal tax purposes shall be treated as not
having been allowable; amounts credited to the Commission
under subsection (b) (6) of this section shall be treated for Fed-
eral tax purposes as not having been received or accrued as in-
come; amounts credited to the applicant under subsection (b) (5)
and (6) of this section shall be treated for Federal tax purposes
as having been received and accrued as income in the taxable year

144

in which falls the date of the enactment of this Act [March 8,
1946] ;

[(2) the liability of the United States for use (exclusive of
service, if any, required under the terms of the charter) of the
vessel on or after the date of the enactment of this Act [March 8,
1946] under any charter party shall not exceed 15 per centum
per annum of the statutory sales price of the vessel as of such date
of enactment [March 8, 1946] and the liability of the United
States under any such charter party for loss of the vessel shall
be determined on the basis of the statutory sales price as of the
date of the enactment of this Act [March 8, 1946], depreciated
to the date of loss at the rate of 5 per centum per annum : Provided,
That the provisions of this subsection (c) (2) [of this section]
shall not apply to any such charter party executed on or after the
date of enactment of this amendatory proviso [August 6, 1956] ;
and the Secretary of Commerce is directed to modify any ad-
justment agreement to the extent necessary to conform to the
provisions of this amendatory proviso ; and

[(3) in the event the United States, prior to the termination
of the existing national emergency declared by the President on
May 27, 1941, uses such vessel pursuant to a taking, or pursuant to
a bare-boat charter made, on or after the date of the enactment
of this Act [March 8, 1946] ; the compensation to be paid to the
purchaser, his receivers, trustees, shall in no event be greater than
15 per centum per annum of the statutory sales price as of such
date.

[(d) Applicability of other laws.

[Section 506 of the Merchant Marine Act, 1936, as amended
[section 1156 of Title 46], shall not apply with respect to (1) any
vessel which is eligible for an adjustment under this section, or (2)
any vessel described in clause (1), (2), (3), or (4) of subsection (a)
of this section, the contract for the construction of which is made
after September 2, 1945, and prior to the date of enactment of this Act
[March 8, 1946].]

SENATE DEBATE AND ADOPTION OF

S. 3957, 93rd CONGRESS

[Congressional Record— v. 120, Oct. 7. 1974— pp. S18356-S18367]

Mr. Mansfield. Mr. President, I ask unanimous consent that the
Senate proceed to the consideration of Calendar No. 1136. S. 3957,
with the approval of the distinguished Senator from Idaho (Mr.
McClure).

The Acting President pro tempore. The bill will be stated by title.

The legislative clerk read as follows :

A hill (S. 3957) to terminate certain authorities with respect to national
emergencies still in effect, and to provide for orderly implementation and
termination of future national emergencies.

The Acting President pro tempore. Is there objection to the present
consideration of the bill ?

There being no objection, the Senate proceeded to consider the bill.

Mr. Mathias. Mr. President, I send an amendment to the desk.

The Acting President pro tempore. The amendment will be stated.

The legislative clerk proceeded to read the amendment.

Mr. Mathias. Mr. President. I ask unanimous consent that further
reading of the amendment be dispensed with.

The Acting President pro tempore. Without objection, it is so
ordered.

The amendment is as follows :

Strike out all after the enacting clause and insert in lieii thereof the following :
That this Act may he cited as the "National Emergency Act"'.

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES

Sec. 101. (a) All powers and authorities possessed by the President, any other
officer or employee of the Federal Government, or any Executive agency, as
defined in section 105 of Title 5, United States Code, as a result of the existence
of any declaration of national emergency in effect immediately prior to one year
after the date of enactment of this Act are terminated one year from the date
of such enactment. Such termination shall not affect —

(1) any action taken or proceeding pending not finally concluded or determined
on such date ;

(2) any action or proceeding based on any act committed prior to such date : or

(3) any rights or duties that matured or penalties that were incurred prior
to such date.

(b) For the purpose of this section, the words "any national emergency in
effect" mean a general declaration of emergency made by the President pursuant
to a statute authorizing him to declare a national emergency.

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES

Sec 201. (a) In the event the President finds that a proclamation of a na-
tional emergency is essential to the preservation, protection and defense of the
Constitution or to the common defense, safety, or well-being of the territory or
people of the United States, the President is authorized to proclaim the existence
of a national emergency. Such proclamation shall immediately be transmitted
to the Congress and published in the Federal Register.

(145)

146

(b) Any provisions of law conferring powers and authorities to be exercised
during a national emergency shall be effective and remain in effect (1) only
when the President (in accordance with subsection (a) of this section), specifi-
cally declares a national emergency, and (2) only in accordance with this Act.
No law enacted after the date of enactment of this Act shall supersede this
title unless it does so in specific terms, referring to this title, and declaring that
the new law supersedes the provisions of this title.

Sec. 202. (a) Any national emergency declared by the President in accordance
with this title shall terminate if —

(1) Congress terminates the emergency by concurrent resolution: or

(2) the President issues a proclamation terminating the emergency. At the
end of each year following the declaration of an emergency which is still in
effect, the President shall publish in the Federal Register and transmit to the
Congress a notice stating that the emergency is still in effect. Any national
emergency declared by the President shall be terminated on the date specified
in any concurrent resolution referred to in clause (1) of this subsection, and any
powers or authorities exercised by reason of said emergency shall cease to be
exercised after such specified date, except that such termination shall not
affect—

(A) any action taken or proceeding pending not finally concluded or deter-
mined on such date ;

(B) any action or proceeding based on any act committed prior to such date;
or

(b) Not later than six months after a national emergency is declared, and
not later than the end of each six-month period thereafter that such emergency
continues, each House of Congress shall meet to consider a vote on a concurrent
resolution to determine whether that emergency shall be terminated.

(c) (1) A concurrent resolution to terminate or continue a national emergency
declared by the President shall be referred to the appropriate committee of the
House of Representatives or the Senate, as the case may be. One such concur-
rent resolution shall be reported out by such committee together with its rec-
ommendations within fifteen calendar days, unless such House shall otherwise
determine by the yeas and nays.

(2) Any concurrent resolution so reported shall become the pending business
of the House in question (in the case of the Senate the time for debate shall
be equally divided between the proponents and the opponents ) and shall be voted
on within three calendar days thereafter, unless such House shall otherwise
determine by yeas and nays.

(3) Such a concurrent resolution passed by one House shall be referred to the
appropriate committee of the other House and shall be reported out by such
committee together with its recommendations within fifteen calendar days and
shall thereupon become the pending business of such House and shall be voted
upon within three calendar days, unless such House shall otherwise determine
by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress
with respect to a concurrent resolution passed by both Houses, conferees shall
be promptly appointed and the committee of conference shall make and file a
report with respect to such concurrent resolution within six calendar days after
the legislation is referred to the committee of conference. Notwithstanding any
rule in either House concerning the printing of conference reports in the Record
or concerning any delay in the consideration of such reports, such report shall
be acted on by both Houses not later than six calendar days after the conference
report is filed. In the event the conferees are unable to acrree within 48 hours,
they shall report back to their respective Houses in disagreement.

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and
section f>02(b) of this Act are enacted by Congress —

(A) as an exercise of the rulemaking power of the Senate and the House of
Representatives, respectively, and as such they are deemed a part of the rules of
each House, respectively, but applicable only with respect to the procedure to be
followed in the House in the case of resolutions described by this subsection:
and they supersede other rules only to the extent that they are inconsistent
therewith : and

(P») with full recognition of the constitutional right of either House to chamre
the rules (so far as relating to the procedure of that House) at any time, in the

147

same manner, and to the same extent as in the case of any other rule of that
House.

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec. 301. Whenever Congress declares war, any provisions of law conferring
powers and authorities to he exercised during time of war shall be effective from
the date of such declaration.

TITLE IV— ENERGISE OF EMERGENCY POWERS AND AUTHORITIES

Sec. 401. When the President declares a national emergency, no powers or au-
thorities made available by statute for use in the event of an emergency shall be
exercised unless and until the President specifies the provisions of law under
which he proposes that he, or other officers will act. Such specification may be
made either in the declaration of a national emergency, or by one or more con-
temporaneous or subsequent Executive orders published in the Federal Register
and transmitted to the Congress.

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS OF THE

PRESIDENT

Sec. 501. (a) When the President declares a national emergency, or Congress
declares war. the President shall be responsible for maintaining a file and index
of all significant orders of the President, including Executive orders and proc-
lamations, and each such Executive agency shall maintain a file and index of all
rules and regulations, issued during such emergency or war issued pursuant to
such declarations.

(b) All such significant orders of the President, including Executive orders,
and such rules and regulations shall be transmitted to the Congress promptly
under means to assure confidentiality where appropriate.

(c) When the President declares a national emergency or Congress declares
war. the President shall transmit to Congress, within 30 days after the end of
each three month period after such declaration, a report on the total expenditures
incurred by the United States Government during such three month period which
are directly attributable to the exercise of powers and authorities conferred by
such declaration. Not later than 30 days after the termination of each such emer-
gency of war, the President shall transmit a final report on all such expenditures.

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY
POWER AND OTHER STATUTES

Sec 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C.
1481 (a > ) is amended —

(1) at the end of paragraph (9), by striking out "; or'' and inserting in lieu
thereof a period; and

(2) by striking out paragraph (10).

(b) Section 2667(b) of Title 10 of the United States Code is amended—
(1 ) by inserting "and" at the end of paragraph (3) ;

< 2 ) by striking out paragraph (4) ; and

(3) by redesignating paragraph (5) as (4).

(c) The joint resolution entitled "Joint Resolution to authorize the temporary
continuation of regulation of consumer credit," approved August 8, 1947 (12
U.S.C. 249 ) . is repealed.

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C.
831d(m)) is repealed.

(e) Section 1383 of Title 18, United States Code, is repealed.

(f) Section 6 of the Act entitled "An Act to amend the Public Health Service
Act in regard to certain matters of personnel and administration, and for other
purposes", approved February 28, 1948, is amended by striking out subsections
(b), (c). (d), (e).and (f) (42 U.S.C. 211b).

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742 I is
repealed.

(h) This section shall not affect —

( 1 ) any action taken or proceeding pending not finally concluded or determined
at the time of repeal :

(2) any action or proceeding based on any act committed prior to repeal ; or

148

(3) any rights or duties that matured or penalties that were incurred prior to
repeal.

Sec. 602 (a) The provisions of this Act shall not apply to the following provi-
sions of law, the powers and authorities conferred thereby, and actions taken,
thereunder :

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95 (a) ;
50 U.S.C. Appal!,)) :

(2) Section 673 of Title 10, United States Code:

(3) Act of April 28, 1942 (40 U.S.C. 278b) ;
( ( i Act of June 30, 1949 (41 U.S.C. 252) ;

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ;

((I) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15).

(b) Each committee of the House of Representatives and the Senate having ju-
risdiction with respect to any provision of law referred to in subsection (a) (1)-
(('») of this section shall make a complete study and investigation concerning that
provision of law and make a report, including any recommendations and proposed
revisions it may have, to its respective House of Congress within 270 days after
Mie date of enactment of this Act.

Mr. Mat 1 1 i.\s. Air. President, I offer this amendment in behalf of
my distinguished colleagues and eochairman of the Special Committee
on National Emergencies and Delegated Emergency Powers (Mr.
Church), and in behalf of the members of the Special Committee —
Mr. Hart. Mr. Case, Mr. Pearson, Mr. Pell, Mr. Stevenson, and Mr.
Hansen.

^ery briefly, some of these are amendments which have been sug-
gested in behalf of the President by the Office of Management and
Budget. They make certain technical changes in the bill as it was origi-
nally approved by the Special Committee, and thereafter approved
by the Committee on Government Operations. They have been cleared
with the distinguished chairman of the Committee on Government
Operations (Mr. Ervin).

What they do is very simple. They extend the grace period provided
in the bill from nine months to a year.

They provide that while Congress can terminate a national emer-
gency at any time by concurrent resolution, there will be no automatic
termination after six months if there is no affirmative action. This has
been replaced by a requirement for the Congress to meet every six
months to consider whether to terminate an emergency. An expedited
privileged procedure would assure consideration and a vote should the
Congress so decide.

We have reduced the list of statutes to be repealed, In working with
the other body, partially as a result of Special Committee studies, most
of the provisions that have been deleted from our original list are to
be taken care of in various deadwood projects by the Codification
Committee of the House of Representatives.

There are six statutes which are to be exempted from the provisions
of this act. These statutes include Trading With the Enemy Act. a
Ready Reserve provision, purchasing contract lease and claims au-
thorities believed by the Executive branch to be absolutely essential
for the operation of government. There is a requirement that the com-
mittees with jurisdiction over these provisions must make a study and
report recommendations within nine months about modifications or
any other changes to be made.

Finally, the requirement for accounting of expenditures incurred
under the authority of emergency powers statutes suggested by Sena-
tor MeOlellan ha^ been included.

149

Mr. President, over two years ago. the Senate created the Special
Committee on the Termination of the Xational Emergency to examine
the state of national emergency the United States was operating under
and to make recommendations of how to best terminate the emergency
and to provide for a regular and consistent procedure by which future
emergencies could be met.

Soon after the bipartisan committee composed of four Democrats
and four Republicans, with cochairnien. one from either party, began
its work, it was evident that there were four states of national emer-
gency in force and not just one as many in the Congress had assumed.
The national emergency declared by President Franklin D. Roosevelt
in March, 1933, to meet the problems of the Great Depression has not
yet been terminated.

The national emergency declared by President Truman in Decem-
ber, 1950, to better prosecute the Korean conflict, is still in force. The
national emergency proclaimed by President Nixon on March 23. 1970,
to handle the Post Office strike, and the August 15. 1971. national
emergency to meet balance of payments and other international eco-
nomic problems of that time are still in force.

A majority of the people of the United State> have lived all of their
lives under emergency government. For four decades normal consti-
tutional processes have not been the rule. The wars, emergencies, and
crises of various kinds of the past 10 years, in addition to the growth
of the Executive branch bureaucracy under the leadership of strong
Presidents, and the diminished role of the Congress in the making of
policy — these factors have all contributed to the erosion of constitu-
tional government.

There is no valid reason for emergency rule to continue. We are not
at war anywhere in the world and there are no other conditions that
require the continued existence of a state of national emergency. Our
government would be strengthened by bringing to an end all states
of national emergency now in existence, and this termination should
take place as soon as possible.

One course of action that seemed at first to be the simplest solution,
namely, to end the existing states of emergency forthwith and to repeal
all emergency statutes, was rejected by the Special Committee after in-
tensive study, because it was clear that such drastic action could cause
serious disruption of governmental processes. Some of the departments
and agencies have used emergency authorities as basic everyday law.
In the view of the Special Committee, it would be unwise to abruptly
halt these operations without providing a reasonable period of time to
make a transition from emergency law to permanent law.

An example of this everyday use of emergency authority is the so-
called section 5(b) of the Trading With the Enemy Act. This provi-
sion which date- back to World War I and 1917 has been in constant
use as a means to regulate many aspects of foreign trade and interna-
tional monetary controls. Partially because of the prospect that the
states of national emergency would be terminated, the Treasury De-
partment has already begun to adjust to doing its business without the
broad open-ended authorities contained in the section 5(b) provisions.
The Special Committee has taken into account the need for a period of
time to make the adjustment with the least possible disarray. For al-
most two years the Treasury Department has been aware that the states

150

of national emergency would be terminated. The germane committees
are aware of the problem. The committees of Congress with assigned

jurisdictions and the Executive branch agencies should properly de-
cide through the regular legislative process the provisions of any new
or modified legislation. In order to assure an orderly transition, the
Special Committee's view that a grace period of one year after date of
enactment should be given to the Executive branch has been incorpo-
rated in the legislation now before the Senate.

S< ition 6021 a) of the lull now before the Senate contains six provi-
sions of law which the Executive branch has strongly urged continue
in force. The Special Committee has concurred in this request. Section
>) would require the standing committees with jurisdiction over
these statutes to study provisions and make a report to the Senate
which would include recommendations and any proposed revisions.
A similar process would be undertaken by the germane committees in
the House. With the informed awareness now available to both the
dative and Executive branches of provisions of law that have been
used to meet emergency situations, it is reasonable to assume that some
modifications will be made in some, if not all. of the statutes contained
in section 601 after further study in the coming nine months by both
the Executive branch and the committees of the Congress. In view of
the Special Committee, the most effective way to resolve this kind of
outstanding issue can best be done by the two branches working through
the regular legislative process. But the burden to remove these excep-
tions lies most heavily upon the Congr< ss.

The Special Committee wanted to be certain that the Executive
branch of the U.S. Government would have the proper legal authority
to act effectively to meet any future emergencies. To this end. the
Special Committee asked every department and agency of the Execu-
tive branch and every standing committee of the Senate to evaluate
the emergency powers statutes now in force as to their utility for use
in any future emergency. This evaluation provides the basis for the
repealer section of the National Emergencies Act. section 601. The
statutes contained therein are considered obsolete by both the Executive
branch agencies and by the committees. There is no disagreement be-
tween the branches that these obsolete provisions should be repealed.

There are other statutes among the 47" statutes that the respective
standing committees may wish to repeal or modify at some future time
should they so decide. The Special Committee now has in the process
of being printed by the Government Printing Office, a Committee print
in the form of a handbook for use by departments and agencies of
the Executive branch and the committees of Congress containing a list-
ing of al] statutes with the evaluation made of these statutes by the
slative and Executive branches.

The Special Committee understands that the Department of Defense
may have special problem- with regard to officer appointments, promo-
tions, distribution in grade, separation and retirements that may not
be resolved by the Armed Services Committees of the Congress and the
Department of Defense by the time the termination of the national
emerg takes effect. I am confident that the Congress would look

sympathetically upon any request to meet any unresolved problem
should there be any after the states of national emergency are
terminated.

151

There is one statute the Special Committee believes strongly should
be repealed: namely, 18 U.S.C. 1383 which gives the President, the Sec-
retary of the Army, or any general the authority to declare any part or
even conceivably all of the United States a military zone. People in
such zones can be put in jail for a year for violating any "Executive
order of the President."

At the present time, only a small portion of the 470 delegated emer-
gency powers is being used. This is one significant proof that there is
no longer an "emergency" that requires extraordinary delegations of
power. In the view of the Special Committee, permitting this body of
potentially authoritarian power to continue in force in the absence of a
valid national emergency situation poses a hazard to democratic
government.

It is important to understand how the present state of emergency rule
has come about. The failure to place emergency rule under firm consti-
tutional guidelines must be considered as a failure by all three branches
to carry out their respective constitutional responsibilities. Aggres-ive
Presidents, permissive Congresses, and a long series of successive crises,
have all contributed to the erosion of the structure of divided powers,
the bedrock of our constitutional system of government.

The studies undertaken by the Special Committee of how the four
states of national emergency came into being, and how the over 470
emergency statutes became the law of the land, provide a disturbing
explanation of the deterioration of the constitutional responsibility for
lawmaking during the past four decades.

In the particular area of emergency powers statutes, the constitu-
tionally prescribed roles of the Legislative and Executive branches
have been reversed. The Special Committee's studies show that in far
too many instances, the Executive branch itself drafted the laws and
cast them in such form as to give itself maximum flexibility. It is under-
standable that the Executive branch, in drafting laws granting power
to itself, did not provide either for oversight or for termination by
Congress. It is also not surprising that most of these laws were passed
in times of crisis, when because of the urgency. Congress acted hastily
without real scrutiny, without thorough hearings, and without the
deliberation that such legislation should have demanded. For these rea-
sons. Congress has not exercised its responsibilities prudently: it has
not even reserved for itself the means to take back its delegated powers.

Xow in a time of relative world peace. Congress has the opportunity
to draw back and reexamine how profligately we have dealt with war
and other emergencies. Our sobering experience with the undeclared
Korean and Vietnam wars heightens the necessity to understand the
means available within the Constitution to meet crisis situations affect-
ing our national security.

The Special Committee has held extensive hearing seeking the views
and advice of the country's most distinguished authorities on constitu-
tional government in time of crisis. In addition to scholarly authorities
in the fields of political science and the law. the Special Committee
sought the counsel of all the former Attorneys General and two former
Sunreme Court Justices, as well as many distinguished lawyers.

The Special Committee has sought to obtain the views and opinions
of each of the three branches about how to best meet the problem

i-474 O - 76 - 11

152

of emergency rule. The Special Committee thought it was particularly
necessary to obtain not simply the present day perspective, but also
the perspective of those who have served in successive administrations,
Congresses, and courts over the past 41 years of emergency rule. It was
particularly helpful to have views of those who have served as both
Attorney General and Supreme Court Justice. We have the opinions,
of course, of Justice Jackson in the most important Youngstown Steel
case. We are fortunate to have a number of Attorneys General who
have served in many capacities and not only in the Executive branch.
A number of this country's most distinguished law schools have on
their faculties men who have served their government in the executive
branch or in the judiciary or as staff consultants to Congressional com-
mittees. In the view of the Special Committee, this broad perspective
over the four decades of emergency rule was absolutely vital in order
to consider the problem in a context that, of course, would include the
immediate concerns of the respective branches but also the test of
history and considered reflection on the part of those who have been
through the experience and could objectively judge. Many of these
views and opinions are contained in the published hearings of the
Committee. Considerable valuable advice was given in study sessions
at law schools or at private meetings held by members of the com-
mittee over the past two years.

On the basis of the suggestions and perspective gained from these
hearings, and from two intensive staff studies of emergency power
statutes and Executive orders, and upon the basis of the data, advice,
and counsel supplied by the Executive branch, the Special Committee,
working with the Executive branch at every step, drafted the legis-
lation now before the Senate which would provide :

First. The termination of the present states of national emergency ;

Second. The establishment of a regularized procedure for the use of
delegated emergency power in future emergencies. The President could
declare a national emergency and in his public proclamation would
cite the specific statutory powers he requires to meet the emergency. A
state of national emergency could be terminated at any time either
by concurrent resolution or by a Presidential proclamation. The Con-
gress would meet under a privileged expedited procedure by the end
of six months to consider whether to continue a state of national emer-
gency. If, by the end of six-month intervals, Congress takes no ac-
tion, the state of national emergency would continue;

Third. A means of providing accountability for actions taken
pursuant to emergency power statutes in any future emergency;

Fourth. A listing of those statutes which both the Executive branch
and the respective standing committees of the Senate agree can be
repealed because they are obsolete; and

Fifth. A listing of six statutes which will continue in force until
such time as the Congress might act to modify or repeal them.

The Special Committee has been careful to consider the needs of
the Executive branch to act promptly and effectively in a time of na-
t ional emergency. From the outset, almost two years ago, we sought the
advice of all the available former Attorneys General, former Supreme
Court Justices including the late former Chief Justice Earl Warren.
We have consulted with the departments and agencies led by a suc-
cession of Cabinet officers.

153

It is not surprising that there were, of course, different points of
views on matters of detail. Understandably, officials in any present
administration would like more flexibility rather than less. But over
the past two years the Executive branch and the Special Committee
have worked together to resolve differences. The bill now before the
Senate is the result of two years of joint effort. We have sought to pro-
vide means to permit the Legislative and Executive branches to carry
out their constitutional responsibilities as well as possible and in accord
with the means prescribed by the Constitution for the respective
branches.

In general, the record of cooperation over the past two years between
the Legislative and Executive branches in working toward a legislative
remedy has been exemplary. Every department and agency of the
Executive branch has cooperated with requests from the Special Com-
mittee for information in their areas of jurisdiction. This cooperation
has been a model of how the two branches can work together. The
Special Committee, for example, would still be laboring through 87 vol-
umes of the Statutes- At -Large to find out exactly what laws were in-
volved, were it not for the assistance provided by the U.S. Air Force
which had fortuitously put the United States Code into its LITE com-
puter system located at a base in Colorado. The General Services Ad-
ministration and particularly the Federal Register of the National
Archives, provided invaluable help in bringing substance and under-
standing into the shadowy world of Executive orders issued pursuant
to states of emergency. The Justice Department, largely through the
counsel of Attorneys General themselves and the Office of Legal Coun-
sel, has given expert advice to the Special Committee, and we grate-
fully acknowledge the importance of their assistance.

The Office of Management and Budget has helped the Special Com-
mittee by providing a detailed evaluation of the current utility of
emergency statutes now in force. The Executive branch's coordinated
evaluation of these statutes and a parallel evaluation by the standing
committees assisted the Special Committee greatly to prescribe a rem-
edy in accord with the constitutional responsibility of Congress to
make laws. The Special Committee urges the Congress to proceed forth-
with to end the four existing states of national emergency, repeal cer-
tain laws that both the Executive branch and the Congress believe ob-
solete, and to legislate a regular procedure to be used in the event of
future national emergencies.

It has been an underlyinp; premise of the Special Committee that the
findings contained in the Youngstown Steel case of 1052. particularly
the opinion of Justice Jackson, provide sound and pertinent guide-
lines for the governance of emergency powers. Justice Jackson, sup-
porting the majority opinion that the "President's power must stem
either from an act of Congress or from the Constitution itself,'' wrote :

Emergency powers are consistent with free government only when their con-
trol is lodged elsewhere than in the Executive who exercises them. That is the
safeguard that would he nullified by our adoption of the "inherent powers" for-
mula. Nothing in my experience convinces me that such risks are warranted by
any real necessity, although such powers would, of course, be an Executive
convenience.

In the practical working of our government we already have evolved a tech-
nique within the framework of the Constitution by which normal Executive pow-
ers may be considerably expanded to meet an emergency. Congress may and has

154

granted extraordinary authorities which lie dormant in normal times but may be
called into play by the Executive in war or upon proclamation of a national
emergency. . . .

In view of the ease, expedition and safety with which Congress can grant and
has granted large emergency powers, certainly ample to embrace this crisis, I
am quite unimpressed with the argument that we should affirm possession of them
without statute. Such power either has no beginning or it has no end. If it exists,
it need submit to no legal restraint. I am not alarmed that it would plunge us
straightway into dictatorship, but it is at least a step in that wrong direction.

But I have no illusion that any decision by this Court can keep power in the
hands of Congress if it is not wise and timely in meeting its problems. A crisis
that challenges the President equally, or perhaps primarily, challenges Congress.
If not good law, there was worldly wisdom in the maxim attributed to Napoleon
that "the tools belong to the man who can use them.'' We may say that power to
legislate for emergencies belongs in the hands of Congress, but only Congress
itself can prevent power from slipping through its fingers.

With all its defects, delays and inconveniences, men have discovered no tech-
niques for long preserving free government except that the Executive be under
the law, and that the law be made by parliamentary deliberations.

In our view, Congress should provide statutory guidelines to assure
the full operation of constitutional processes in time of war or emer-
gency. This is the best prescription to avoid any future exercise of arbi-
trary authoritarian power. For as the Youngstown case decided, where
there is a statute, the Executive is obliged to use the statutory remedy ;
where there are no lawful statutory guidelines is to invite so-called in-
herent powers to come into play. There is without question a need, in
view of the Special Committee, to provide the Executive branch with
an effective, workable method for dealing with future emergencies in
accord with constitutional processes. The Special Committee has
sought to do this in fulfillment of its mandate.

During the past year, the Special Committee requested the assistance
of the Majority and Minority Leaders in the preparation of guidelines
for procedural actions to be taken on the part of the Senate in possible
future emergencies. Because it is clear that if Congress is to fulfill its
responsibilities to act in time of emergency, it must make preparations
in advance to do so. The actions already taken by the leadership, in
the view of the Special Committee, meet the needs that might reason-
ably be required by future emergencies.

Senator Church, the cochairman of the Special Committee, and I
met with President Ford on August 22, to discuss the National Emer-
gencies Act. He agreed in principle with the purposes contained
therein. We were much encouraged by his understanding of and sup-
port for a solution to this most important question that confronts our
constitutional system of government.

In addition, Ave have delayed action on this bill in order to permit
the Executive branch to give us some further suggestions. We thought
many of the proposals were helpful to the overall purpose and have
included them as perfecting amendments to the bill.

We believe that the National Emergencies Act. now before the Sen-
ate, if enacted, would remove one threat to constitutional government
by placing the exercise of emergency powers under a regular and con-
sistent procedure consistent with the constitutional responsibilities of
the separate branches. We urge the Senate to vote affirmative for
this proposal to strengthen constitutional processes.

While it is important to stress that provisions of the National Emer-
gency Act affect only those provisions of law which are specifically

155

triggered by war or a state of national emergency, there are a number
of other statutes not specifically cast in the form of emergency powers
statutes, some of which are far-reaching in nature that are a part of
the history of emergency rule. Some of these provisions have been re-
ferred to on pages 2 and 3 of the interim report of the Special Com-
mittee on National Emergencies and Delegated Emergency Powers in
support of a recommended National Emergencies Act of September 24,
1074. Report Xo. 03-1170. It is the intention of the Special Committee
in a final report to indicate those provisions of law that the regular
standing committees should, in the view of the Special Committee ex-
amine carefully and consider whether changes would be warranted in
the light of the present situation.

The Special Committee wishes to stress that the six statutes con-
tained in section 602 deserve the most careful consideration by the
committees with jurisdiction over the provisions. I ask unanimous
consent that the texts of these provisions be printed in the Record at
this point in my remarks.

There being no objection, the statutes were ordered to be printed in
the Record, as follows :

12 U.S.C. 95a. Regulation of Transactions in Foreign Exchange of Gold and
Silver : Property Transfers ; Vested Interests. Enforcement and
Penalties

Hi During the time of war or during any other period of national emergency

(hela red by the President, the President may, through any agency that he may
designate, or otherwise, and under such rules and regulations as he may pre-
scribe, by means of instructions, licenses, or otherwise —

i A) investigate, regulate, or prohibit any transactions in foreign exchange,
transfers of credit or payments between, by. through or to any banking institu-
tion, and the importing, exporting, hording, melting, or earmarking of gold or
silver coin or bullion, currency or securities, and

(B) investigate, regulate, direct and compel, nullify, void, prevent or pro-
hibit, any acquisition holding, withholding, use, transfer withdrawal transporta-
tion, importation or exportation of. or dealing in. or exercising any right, power,
or privilege with respect to. or transactions involving, any property in which any
foreign country or a national thereof has any interest, by any person, or with
respect to any property, subject to the jurisdiction of the United States: and
any property or interest of any foreign country or national thereof shall vest,
when. as. and upon the terms directed by the President, in such agency or per-
son as may be designated from time to time by the President, and upon such
terms and conditions as the President may prescribe such interest or property
shall be held, used, administered, liquidated, sold, or otherwise dealt with in
the interest of and for the benefit of the United States, and such designated
agency or person may perform any and all acts incident to the accomplishment
<>r furtherance of these purposes; and the President shall, in the manner here-
inabove provided, require any person to keep a full record of. and to furnish
under oath, in the form of reports or otherwise, complete information relative to
any act or transaction referred to in this section either before, during, or after
the completion thereof, or relative to any interest in foreign property, or rela-
tive to any property in which any foreign country or any national thereof has
or has had any interest, or as may be otherwise necessary to enforce the pro-
visions of this section, and in any case in which a report could be required,
the President may. in the manner hereinabove provided, require the production,
or if necessary to the national security or defense, the seizure, of any books of
account, records, contracts, letters, memoranda, or other papers, in the custody
or control of such person : and the President may. in the manner hereinabove
provided, take other and further measures not inconsistent herewith for the
enforcement of this section.

(2) Any payment, conveyance, transfer, assignment, or delivery of property or
interest therein, made to or for the account of the United States, or as otherwise

156

directed, pursuant to this section or any rule, regulation, instruction or direc
tion issued hereunder shall to the extent thereof be a full acquittance and dis-
charge for all purposes of the obligation of the person making the same ; and no
person shall be held liable in any court for or in respect to anything done or
omitted in good faith in connection with the administration of, or in pursuance
of and in reliance on, this section, or any rule, regulation, instruction, or direc-
tion issued hereunder.

(3) As used in this section the term "United States" means the United States
and any place subject to the jurisdiction thereof: Provided, however, That the
foregoing shall not be construed as a limitation upon the power of the
President, which is conferred, to prescribe from time to time, definitions,
not inconsistent with the purposes of this section, for any or all of the
terms used in this section. Whoever willfully violates any of the pro-
visions of this section or of 'any license, order, rule or regulation issued there-
under, shall, upon conviction, be fined not more than $10,000, or, if a natural
person, may be imprisoned for not more than ten years, or both ; and any officer,
director, or agent of any corporation who knowingly participates in such violation
may be punished by a like fine, imprisonment, or both. As used in this section the
term "person" means an individual, partnership, association, or corporation.
(Oct. 6, 1917, ch. 106, § 5(b), 40 Stat. 415; Sept. 24, 1918, ch. 176, §5, 40 Stat
966 ; Mar. 9, 1933, ch. 1 title I, § 2, 48 Stat. 1 ; May 7, 1940, ch. 185, § 1, 54 Stat.
179 ; Dec. 18, 1941, ch. 593, title III, § 301, 55 Stat. 839 ; Proc. No. 2695, eff. Julv 4,
1946, 11 F.R. 7517, 69 Stat. 1352.)

Note — Trading With the Enemy Act of 1917

The Trading With the Enemy Act of 1917 has been amended frequently, and in
the process its original purpose and effect have been altered significantly. The
Act was originaly intended to "define, regulate and punish trading with the
enemy," 40 Stat. 415. Directed primarily to meeting the exigencies of World
War I, its drafters intended the Act to remain on the books for future war
situations. 55 Cong. Rec. 4908. Accordingly, when other war powers were termi-
nated in 1921 an exception was made for the Act and it remained valid law. 41
Stat. 1359 (the Knox Resolution).

On March 5, 1933, President Roosevelt relied on section 5(b) of the Trading
with the Enemy Act as authority for his Proclamation 2039 which closed all banks
for five days. This was clearly a time of financial crisis, not of war, and hence
was not within the literal terms and purposes of the Act. Congress rectified the
situation five days later when it ratified the President's proclamation and
amended section 5(b) to give the President the broad wartime powers of that sec-
tion in times of declared national emergency as well. 48 Stat. 1. The desperate
economic circumstances of the time dictated the passage of this sweeping
change — after only eight hours of Congressional consideration.

Roosevelt relied on section 5(b) again in 1939 when he restricted all trans-
fers of currency and credit between the United States and German-occupied Den-
mark and Norway. Executive Order 8389. This action was subsequently approved
and the President's exact powers clarified by Congress, resolving whatever ques-
tions may have remained about Congressional intentions to restrict the applica-
tion of 48 Stat. 1 to either the economic emergency or to actual wars. 54 Stat.
179. This set the legal stage, then, to invoke Presidential powers and under the
Trading With the Enemy Act in wartime or pursuant to any declaration of na-
tional peacetime emergency.

The next time these powers were involved was during World War II (with a
slight Congressional modification — see 55 Stat. 838). A major expansion of Presi-
dential authority was effected with the imposition of consumer credit controls
(Executive Order 8843) by interpreting "banking institutions" as used in section
5(b) to include any person engaged in the business of making extensions of
credit. Subsequent Congressional action has reaffirmed this power, too, in times
of war or national emergency. 12 U.S.C. 249.

Another declaration of national emergency was made in Proclamation 2914 of
December 16, 1950, during the Korean War. Trading With the Enemy Act powers
were exercised pursuant to this proclamation throughout the war. Because
the state of emergency so declared has never been terminated, however, this
proclamation has continued to serve as the basis for invocation of powers under
the Act. Most notably, President Johnson used section 5(b) as authority for Ex-

157

ecutive Order 11837 of January 1, 1968, imposing controls over transfers of pri-
vate capital to foreign countries. (On the validity of this action, see Opinion of
the Attorney General February 3, 1968.)

On August 15, 1971, President Nixon, in Proclamation 4074. declared an emer-
gency concerning America's declining worldwide economic position. He imposed
an import surcharge and devalued the dollar, among other things. One year later,
when the Export Control Act lapsed for a month, he invoked section 5(b) to reg-
ulate exports, basing his authority to do so both on his Proclamation 4074 and on
President Truman's proclamation of 1950.

The current law, which has accreted over a period of 50 years, gives the
President a wide range of powers, but only in time of war or declared national
emergency. Although the Korean War has ended, these powers are being exercised
solely on the basis of the 1950 emergency : or. on the basis of the President's uni-
laterally designating as "emergencies" situations which have only the most
tenuous relationship to the serious national crises for which the Trading With
the Enemy Act was originally intended. The President, with the approval of Con-
gress, has thus used as authority for extraordinary actions laws which have no
real relationship whatsoever to existing circumstances. As a consequence, a
"national emergency" is now a practical necessity in order to carry out what has
become the resrular and normal method of governmental action. What were
intended by Congress as delegations of power to be used only in the most extreme
situations and for the most limited durations have become everyday powers; and
a state of ••emergency" has become a permanent condition.

Department of Justice.

May 21, 1914.

Memorandum for the Special Committee ox the Termination of the
National Emergency

Re: Emergency power under § 5(b) of the Trading With the Enemy Act

During the course of hearings held by the Committee frequent mention has
been made of the Trading With the Enemy Act ("the Act"). Section 5(b) of the
Act las been the statutory foundation for control of domestic as well as inter-
national financial transactions and is not restricted to "trading with the enemy."
Its use over the years provides an interesting study in the evolution of a statute
as a result of continuing interplay between the Executive and Congress. Of all
the emergency statutes under study by the Committee, it has ihe most complex
and varied history. This paper does not make any recommendations or draw any
conclusions but presents a short legal chronology of §5(b) to assist the Com-
mittee in understanding its background and present status.

I. ORIGINAL ENACTMENT WORLD WAR I

The Act was passed in 1917 to "define, regulate, and punish trading with the
enemy." 40 Stat. 415. Section 5(b) .srave the President power to regulate trans-
actions in foreign exchange, the export <>r hoarding of gold or silver coin or
bullion or currency and transfers of credit in any form •'between the United
States and any foreign country, whether enemy, ally of enemy, or otherwise." 40
Stat. 415 (1917) as amended by 40 Stat. 966 (1918). Section 5(b), at that time,
exempted '"transactions to be executed wholly within the United States." thus
appearing to limit its use as a basis for domestic controls. It did not include a
provision permitting use of the Act during periods of national emergency nor
was its use restricted by its terms to the duration of the First World War or any
specified term after the end of the War. A law passed in 1921 terminating certain
war powers specifically exempted the Act from termination because of the large
amount of property held under the Act by the Alien Property Custodian at that
time. See Ellingwood, The Legality of the National Bank Moratorium, 27 Xw.
U.L. Rev. 923. 92.5-26 1 1933).

II. DEPRESSION RANKING EMERGENCY

Upon taking office in March. 1933, President Roosevelt was pressed to deal
promptly with a nationwide panic that threatened to drain the liquid resources
of most of the banks in the country. The Public Papers and Addresses of Franklin

158

D. Roosevelt, pp. 24-29 (1933) [hereinafter "Roosevelt Papers"]. He therefore
invoked the "forgotten provisions" of § 5(h) on March 6, 1933, to declare a bank
holiday and control the export of gold. Sehlesinger, The Coming of the New Deal
4 (1959). The bank holiday proclamation noted that there had been "heavy and
unwarranted withdrawals of gold and currency from our banking institutions for
the purpose of hoarding" and that increasing speculation abroad in foreign ex-
change had resulted in severe drain on domestic gold supplies, thus creating a
"national emergency." Therefore, it was "in the best interest of all bank deposi-
tors that a period of respite be provided with a view to preventing further hoard-
ing of coin, bullion or currency or speculation in foreign exchange." In order to
prevent export or hoarding of bullion or currency, a bank holiday was, therefore,
proclaimed from March 6 through March 9, 1933. Executive Proclamation No.
2039. March 6, 1933, 48 Stat. (Part 2) 1698.

By invoking § 5(b) as authority, President Roosevelt was, of course, using that
provision for a different purpose than the one for which it was enacted in 1917.
However, as one writer noted, closing the banks was "one of the surest and
quickest ways'' to prevent transactions in foreign exchange and the exportation
of gold and silver coin, bullion and currency. Section 5(b) had, as noted, given
the President power to regulate such matters. Ellingwood, The Legality of the
'National Bank Moratorium. 27 Xw. ILL. Rev. 923, 925 (1933).

Congress was called into session within days of the Proclamation. Roosevelt
Papers 17. As soon as Congress was convened on March 9, 1933, it approved the
bank holiday by passing the so-called Emergency Banking Act or Bank Conser-
vation Act, 48 Stat. 1. That Act provided that the actions and proclamations "here-
tofore or hereafter taken ... or issued by the President of the United States . . .
since March 4, 1933, pursuant to the authority conferred by subdivision (b) of
section 5 of the Act of October 6, 1917, as amended, are hereby approved and
confirmed." (48 Stat. 1 ; 12 U.S.C. 95b (1970) ). Congress thus "spread its protec-
tive approval over Executive acts the legality of which was uncertain." Elling-
wood, op. oit. supra at 27 Nw. U.L. Rev. 929 (1933). Congress also amended sec-
tion 5(b) to provide, among other things, that "[d]uring time of war or during
any other period of national emergency declared by the President, the President
may . . . regulate, under such rales and regulations as he may prescribe . . .
transfers of credit between or payments by banking institutions as defined by
the President. . . ." 48 Stat. 1. In the enactment clause Congress declared "that
a serious emergency exists." 48 iStat. 1. The exclusion of domestic transactions,
formerly found in the Act, was deleted from § 5(b) at this time.

The legislative history of the Emergency Banking Act is short ; only eight hours
elapsed from the time the bill w T as introduced until it was signed into law. There
were no committee reports. Indeed, the bill was not even in print at the time it
was passed. 77 Cong. Rec. 76, 80 (1933) ; Schlesinger, The Coming of the Keiv
Deal 8.

The abbreviated history shows Congress recognized that the powers conferred
on the President by the Act were great. In the debate preceding the bill's passage
those supporting it made such remarks as :

". . . In time of storm there can only be one pilot. In my judgment, the House
of Representatives realizes that the pilot in this case must be the President of the
United States, and they will steer their course by him (Rep. Goldsborough, 77
Cong. Rec. 81).

"It is a dictatorship over finance in the United States. It is complete control
over the banking system in the United States. (Rep. McFadden, 77 Cong. Rec. 80).

"I realize that in time of peace we have perhaps never been called upon to vest
such transcendent powers in the Executive as are provided for in this bill. . . .
It is an emergency which can be adequately dealt with only by the strong arm of
Executive power, and, therefore, I expect to vote for the bill, though it contains
grants of pow T ers which I never before thought I would approve in time of
peace." (Sen. Connally, 77 Cong. Rec. 65).

The courts later upheld the validity of the bank holiday under the Act as
amended, E.g.. Smith v. Witherow, 102 F.2d 638, 641 (3d Cir., 1939) ; Hardee v.
Washington Loan, & Trust Co., 91 F.2d 314 (D.C. Cir. 1937). Because of the
prompt action taken by Congress in ratifying the March 6 proclamation, no judi-
cial decisions were rendered on the question of whether the President's action, if
taken alone, would have been lawful.

Subsequently in 1933-34, acting under §5(b), President Roosevelt issued a
series of orders which prohibited the hoarding of gold and directed that all gold

159

bullion certificates be deposited with the Federal Reserve banks and which
regulated transactions in foreign exchange :

(1) Executive Order 6073 of March 10, 1933, prohibited the export or removal
of gold from the United States, except as authorized by the Secretary of the
Treasury, and banks were prohibited from making transfers of foreign exchange
except in connection with certain described transactions. This order did not
specifically refer to a national emergency.

(2) Executive Order 6102 of April 5. 1933, generally required holders of gold
coin, gold bullion, and gold certificates to surrender their holdings to Federal
Reserve banks. This Order stated "By virtue of the authority vested in me bi-
section 5(b) . . . as amended by section 2 of the Act of March 9, 1933, ... in
which amendatory Act Congress declared that a serious emergency exists, I . . .
do declare that said national emergency still continues to exist."

(3) Executive Order 6111 of April 20, 1933, authorized the Secretary of the
Treasury to regulate transactions in foreign exchange and the export or with-
drawal of currency from the United States. The emergency basis for E.O. 6111
was stated in the same language as the language of E.O. 6102, quoted immediately
above.

(4) Executive Order 6260 of August 28, 1933. was issued to supplant Executive
Orders 6102 and 6111. This order prohibited the holding or export of gold, except
under license issued by the Secretary of the Treasury, and authorized the
Secretary to regulate or prohibit transactions in foreign exchange. In E.O. 6260
the President stated, "I . . . do declare that a period of national emergency
exists." Executive Order 6260 was confirmed and amended by Presidents Eisen-
hower and Kennedy. 31 CFR Part 54. See 42 Op. A.G. No. 35, p. 9.

(5) Executive Order 6560. of January 15, 1934, authorized the Secretary of the
Treasury to regulate transactions in foreign exchange, transfers of credit from
American to foreign banks and export of currency or silver coin. This order is
still on the books today. See 31 CFR Parts 127-128. In this Order, the President
declared that "a period of national emergency continues to exist."

In January, 1934, Congress ratified all acts which had been performed under
the Emergency Banking Act, 48 Stat. 343 (1934) ; 12 U.S.C. 213 (1970).

III. WORLD WAR II ALIEN PROPERTY FREEZE

Following the invasion of Norway and Denmark by Germany in April, 1940,
President Roosevelt acted to protect funds of residents of these countries in the
United States from withdrawal under duress by issuing an order freezing those
assets except as authorized by the Secretary of the Treasury. Executive Order
No. 8389 (April 10, 1940). The order referred to authority under § 5(b) but did
not specifically mention the existence of a national emergency. The President
had proclaimed a national emergency only months before in September, 1939;
Proclamation No. 2352 noted the neutrality of the United States in the war and
stated :

"Whereas measures required at this time call for the exercise of only a limited
number of the powers granted in a national emergency :

"Now, therefore. I ... do proclaim that a national emergency exists in con-
nection with and to the extent necessary for the proper observance, safeguarding,
and enforcing of the neutrality of the United States and the strengthening of our
national defense within the limits of peacetime authorizations."

Subsequently on May 7, 1910, Congress passed a resolution "to remove any
doubt" that §5(b) authorized certain aspects of the freeze order. The Report
of the Senate Banking Committee noted that when Congress passed the Emer-
gency Banking Act, "it intended to grant to the President all of the powers con-
ferred upon him by section 5(b) of the Act of October 6, 1917, and to authorize
him to exercise all of such powers not only in time of war, but during anv other
period of national emergency." S. Rep. No. 1496, 76th Cong, 3d Sess. 1 (1949). By
joint resolution, Congress thus approved and confirmed the order and amended
§5(b) to clarify the President's freeze power over alien property. 54 Stat. 179
(1940). See United States v. Von Clem?n, 136 F. 2d 968, 970 (2d Cir. 1934), cert
denied. 320 U.S. 769 (1943) upholding the retroactive validitv of the 1940 joint
resolution of Congress).

The original freeze order was an amendment to Executive Order No. 6560 of
January, 1934, regulating foreign exchange and the export of coin and currency
and the controls were somewhat similar to those exercised during the First

160

World War and during the banking crisis of 1933. This order, covering Norway
and Denmark was followed by similar Executive orders after other nations were
invaded or subjected to Axis domination. Eventually Germany, Japan and Italy
were themselves covered in June and July, 1941. The purpose of the orders was to
keep the Axis from using billions of dollars of assets in the United States. Boose-
velt Papers (1940 vol.), pp. 133-34. Regulations issued by the Secretary of the
Treasury, pursuant to a general delegation of Presidential authority under § 5(b)
made in 1942, continues to this date to serve as the basis for blocking trade and
financial transactions with North Korea, Cuba and North Vietnam. See 31 C.F.R.
part 500 et seq.; Executive Order 9193, sec. 3, July 6, 1942, 7 Fed. Reg. 5205, and
Executive Order 9989, Aug. 20, 1948, 13 Fed. Reg. 4891.

IV. CONSUMER CREDIT CONTROLS

Four months before the United States entered World War II, President Roose-
velt issued Executive Order No. 8843, which directed the Federal Reserve Board
to impose consumer installment credit controls as a measure to fight inflation, 6
Fed. Reg. 4035 (1941). The order was issued on August 9, 1941, under §5(b)
"in order, in the national emergency declared by me on May 27, 1941, to promote
the national defense and protect the national economy. ..." 6 Fed. Reg. 4035
(1941). On May 27, 1941, the President had issued Proclamation No. 2487 which
proclaimed that "an unlimited national emergency confronts this country, which
requires that its military, naval, air and civilian defense be put on the basis of
readiness to repel any and all acts or threats of aggression directed toward any
part of the Western Hemisphere."

In Executive Order 8843 the term "banking institution" as used in §5(b),
was defined to include any person engaged in the business of making extensions
of credit whether a vendor of consumer durable goods or otherwise. The Fed-
eral Reserve Board was authorized, in order to prevent evasion of the order, to
regulate any other extension of installment credit, any credit for the purpose of
purchasing or carrying any consumers' durable goods or any other extension of
credit in the form of a loan (other than loans to businesses or agricultural enter-
prises) . 6 Fed. Reg. 4036.

There was some suggestion at the time that the definition of banking in-
stitution to include vendors of "consumer durable goods" was beyond the power
conferred by § 5(b). One writer noted that the President had "disclosed hitherto
unsuspected potentialities" in § 5(b) by using this definition of banking institu-
tions and that a clearer statutory basis would be desirable for such controls.
Note, Federal Regulation of Consumer Credit by Executive Order. 44 Column L.
Rev. 1287, 1289 (1941)). See also Pride Control Bill, Hearings on H.R. 5^79
before the House Banking and Currency Committee, 77th Cong., 1st Sess., pp.
116-117 (1941). Nevertheless, the controls were accepted once the order was
issued and never challenged in court. In December, 1941, Congress passed the First
War Powers Act (55 Stat. 839) which included a provision approving and ratify-
ing actions which had been taken under § 5 ( b ) . thus apparently approving Ex-
ecutive Order No. 8843.

After World War II. Congress on four occasions took legislative action con-
cerning imposition by the Federal Reserve Board of consumer credit controls
pursuant to § 5(b). The four actions by Congress are as follows :

(1) The Congress passed a joint resolution in 1947 which provided that after
November 1, 1947, the Federal Reserve Board was not to exercise consumer-credit
controls pursuant to Executive Order No. 8843. 61 Stat. 921, 12 U.S.C. 249. The
joint resolution also provided that no "such consumer credit controls" could be
exercised except during wartime or any national emergency thereafter declared
by the President. , ._ ..

The legislation took this form because President Truman had decided to
place the issue of the continuation of controls "in the laps of Congress" rather
than rescind the controls himself by revoking the Executive order. 93 Cong. Rec.
97.17. The legislative history of the 1947 resolution shows that Congress intended
that the President have the power, if needed, to make such controls effective
against the day after the resolution by declaring a new national emergency. See
98 Cong. Rec. 9753, 9758-59. .

(2) On August 1Q. 1948, Congress changed its policy and authorized the fed-
eral Reserve Board, "notwithstanding" the 1947 joint resolution, to exercise con-
sumer-credit controls in accordance with and to carry out the purposes of ex-
ecutive Order No. 8843. 62 Stat. 1291.

161

The legislative history of the 1948 act again affirms Congressional intent that
the President retain his authority under Executive Order No. 8843 to exercise
consumer credit controls thereafter during time of war or national emergency. It
also made clear that he could have reimposed them on his own without the 1948
resolution. The House report noted :

"When the Congress terminated the controls over consumer credit pursuant to
the provision of [12 U.S.C. 249], it specifically provided that such termination
did not affect the authority to reimpose such controls during the time of war or
any national emergency declared by the President. The President has evidently
not seen fit to use this authority to reinstate the regulation of consumer credit
and henceforth, the Committee proposes in this joint resolution for Congressional
enactment of such powers for a temporary period with respect to consumer in-
stallment credit and at the same time reserve the authority to exercise consumer
credit controls thereafter during the time of war or declaration of any national
emergency by the President, H.R. Rep. No. 2155, 80th Cong., 2d Sess. 5-6 (1948).

The 1948 authority expired June 30, 1949.

(3) In § <;ni of the Defense Production Act of 1950, using language patterned
closely on that of the 1948 enactment, Congress again gave the Federal Reserve
Board authority to exercise consumer credit controls under Executive Order No.
8843 "notwithstanding" the 1947 joint resolution. 64 Stat. 812.

(4) In June, 1952, while extending other parts of the act, including § 602, Con-
gress repealed § 601, 66 Stat. 305. Repealing § 601 appeared to restore the provi-
sions of the 1947 joint resolution (12 U.S.C. 249) authorizing the impositions of
consumer credit controls again during a war or a iieriod of national emergency.

V. FOREIGN DIRECT INVESTMENT PROGRAM

Section 5(b) was also used as authority for the Foreign Direct Investment
Program in 1968. Under E.O. 11387 of January 1. 1968, controls were imposed
by President Johnson over transfers of capital to foreign countries by substantial
investors in the United States. A formal opinion was issued by Attorney General
Ramsey Clark upholding the program. The opinion reviews the history of §5(b).
It also discusses the continuation of the national emergency declared by Presi-
dent Truman in Proclamation 2914 of December 16. 1950, which referred to the
hostilities in Korea and the world menace of the forces of communist aggression.
42 Op. A..G. No. 35. The order relies on the continuation of this emergency.

On March 2. 1973. a Federal district court judge ruled orally that §5(b) did
not authorize an indictment charging a violation of the foreign direct invest-
ment program. The existence of a national emergency was not raised, however.
An appeal is now heing prepared. United states v. Ryan, Crim. No. 2038-78
(D.D.C. 1!>73). E.O. 11387 continues in effect today.

VI. EXPORT CONTROLS

Most recently, §5(b) was used for a month in 1972 when it was invoked by
President Nixon as authority for the regulations of exports. E.O. 11677 of
August 1. 1972. Section 5ih) was used in this situation because the existing law
authorizing export controls, the Export Administration Act of 1969. S3 Stat.
S41, as amended hy 86 Stat. 133. had expired. When export control legislation was
re-enacted, E.O. li677 was revoked by E.O. 11683 of August 29, 1972.

The Executive order imposing controls recited the continued existence of the
national emergencies declared hy Proclamation No. 2914 of December 16, 1950,
referred to above, and by Proclamation No. 4074 of August 15, 1971, which im-
posed a supplemental duty on imports for balance of payments purposes.

50 U.S.C. App. 5. Suspension of Provisions Relating to Ally of Enemy : Regu-
lation of Transactions in Foreign Exchange of Gold or Silver, Property
Transfers, Vested Interests, Enforcement and Penalties

(a) The President, if ho shall find it compatible with the safety of the United
States and with the successful prosecution of the war, way, by proclamation,
suspend the provisions of this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this
Appendix] so far as they apply to an ally of enemy, and he may revoke or renew
such suspension from time to time ; and the President may grant licenses, spe-

162

cial or general, temporary or otherwise, and for such period of time and con-
taining such provisions and conditions as he shall prescribe, to any person or
class of persons to do business as provided in subsection (a) of section four
hereof [section 4(a) of this Appendix], and to perform any act made unlawful
without such license in section three hereof [section 3 of this Appendix], and
to file and prosecute applications under subsection (b) of section ten hereof
[section 10(b) of this Appendix] ; and he may revoke or renew such licenses
from time to time, if he shall be of opinion that such grant or revocation or re-
newal shall be compatible with the safety of the United States and with the
successful prosecution of the war ; and he may make such rules and regulations,
not inconsistent with law, as may be necessary and proper to carry out the
provisions of this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this Appendix] ; and
the President may exercise any power or authority conferred by this Act [said
sections] through such officer or officers as he shall direct.

If the President shall have reasonable cause to believe that any act is about
to be performed in violation of section three hereof [section 3 of this Appendix]
he shall have authority to order the postponement of the performance of such
act for a period not exceeding ninety days, pending investigation of the facts by
him.

(b) (1) During the time of war or during any other period of national emer-
gency declared by the President, the President may, through any agency that he
may designate, or otherwise, and under such rules and regulations as he may pre-
scribe, by means of instructions, licenses, or otherwise —

(A) investigate, regulate, or prohibit, any transactions in foreign exchange,
transfers of credit or payments between, by, through, or to any banking institu-
tion, and the importing, exporting, hoarding, melting, or earmarking of gold
or silver coin or bullion, currency or securities, and

(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit,
any acquisition holding, withholding, use, transfer, withdrawal, transportation,
importation or exportation of, or dealing in, or exercising any right, power, or
privilege with respect to or transactions involving any property in which any
foreign country or a national thereof has any interest, by any person, or with
respect to any property, subject to the jurisdiction of the United States; and
any property of interest of any foreign country or national thereof shall vest,
when, as, and upon the terms, directed by the President, in such agency or
person as may be designated from time to time by the President, and upon
such terms and conditions as the President may prescribe such interest or
property shall be held, used, administered, liquidated, sold, or otherwise dealt
with in the interest of and for the benefit of the United States, and such
designated agency or person may perform any and all acts incident to the ac-
complishment or furtherance of these purposes ; and the President shall, in
the manner hereinabove provided, require any person to keep a full record
of, and to furnish under oath, in the form of reports or otherwise, com-
plete information relative to any act or transaction referred to in this sub-
division either before, during, or after the completion thereof, or relative to
any interest in foreign property, or relative to any property in which any for-
eign country or any national thereof has or has had any interest, or as may be
otherwise necessary to enforce the provisions of this subdivision, and in any
case in which a report could be required, the President may, in the manner here-
inabove provided, require the production, or if necessary to the national security
or defense, the seizure, of any books of account, records, contracts, letters,
memoranda, or other papers, in the custody or control of such person ; and the
President may, in the manner hereinabove provided, take other and further
measures not inconsistent herewith for the enforcement of this subdivision.

(2) Any payment, conveyance, transfer, assignment, or delivery of property
or interest therein, made to or for the account of the United States, or as other-
wise directed, pursuant to this subdivision or any rule, regulation, instruction, or
direction issued hereunder shall to the extent thereof be a full acquittance and
discharge for all purposes of the obligation of the person making the same; and
no person shall be held liable in any court for or in respect to anything done or
omitted in good faith in connection with the administration of, or in pursuance of
and in reliance on, this subdivision, or any rule, regulation, instruction, or direc-
tion issued hereunder.

(3) As used in this subdivision the term "United States" means the United
States and any place subject to the jurisdiction thereof: Provided, however. That

163

the foregoing shall not be construed as a limitation upon the power of the Presi-
dent, which is hereby conferred, to prescribe from time to time, definitions, not
inconsistent with the' purposes of this subdivision, for any or all of the terms used
in this subdivision. Whoever willfully violates any of the provisions of this sub-
division or of any license, order, rule or regulation issued thereunder, shall upon
conviction, be fined not more than $10,000, or, if a natural person, may be impris-
oned for not more than ten years, or both ; and any officer, director, or agent of
any corporation who knowingly participates in such violation may be punished by
a like fine, imprisonment, or both. As used in this subdivision, the term "person"
means an individual, partnership, association, or corporation. (Oct. 6, 1917, ch.
196, § 5, 40 Stat. 415: Sept. 24. 1918, ch. 176. § 5. 40 Stat. 966; Mar. 9, 1933. ch. 1,
§ 2, 48 Stat. 1 ; May 7, 1940, ch. 185, § 1, 54 Stat. 179 ; Dec. 18. 1941, ch. 598, title
III. § 301, 55 Stat. 839; Proc. No. 2695, July 4, 1946, 11 F.R. 7517, 60 Stat. 1352.)
[See 12 U.S.C. 95 and 95a. Supra.]

10 U.S.C. 673. BEADY RESERVE

(a) In time of national emergency declared by the President after January 1,
1953, or when otherwise authorized by Jaw, an authority designated by the Secre-
tary concerned may. without the consent of the persons concerned, order any
unit, and any member not assigned to a unit organized to serve as a unit, in the
Ready Reserve under the jurisdiction of that Secretary to active duty (other than
for training) for not more than 24 consecutive months.

(b) To achieve fair treatment as between members in the Ready Reserve who
are being considered for recall to duty without their consent, consideration shall
be given to —

(1) the length and nature of previous service, to assure such sharing of expo-
sure to hazards as the national security and military requirements will reasonably
allow ;

(2) family responsibilities; and

(3) employment necessary to maintain the national health, safety, or interest.

The Secretary of Defense shall prescribe such policies and procedures as he con-
siders necessary to carry out this subsection. He shall report on those policies
and procedures at least once a year to the Committee on Armed Services of the
Senate and the House of Representatives.

(c) Not more than 1,000.000 members of the Ready Reserve may be on active
duty (other than for training), without their consent under this section at any
one time. (Aug. 10. 1956. ch. 1041. 70A Stat. 28; Sept. 2, 1958, Pub. L. 85-861, §§ 1
(14), 33(a) (5), 72 Stat. 1441, 1564.)

Note— Excerpt From House Report 1066, 82d Cong., 2d Sess. (1952)
national emergency declared by the president

In time of national emergency proclaimed by the President, or when other-
wise authorized by lair, any member of the Ready Reserve may be ordered to
active duty without his consent for such period of time not to exceed 24 consecu-
tive months, but no member could be ordered to active duty, under the committee
amendment, until the Congress had determined the number of members needed for
the national security. Members may be ordered as individuals or as units, but as
in the previous subsection, the Committee has provided a safeguard against the
ordering of individual members of units organized to serve as units. This provision
would apply only in a future national emergency proclaimed by the President but
would retain in effect the authority to order such members to active duty under
section 21 of the UMTS Act with the limitations contained therein.

At present time all members of the Naval Reserve, Marine Corps Reserve, and
the Coast Guard Reserve, may be ordered to active duty in time of Presidential
emergency for the duration of the emergency and for six months thereafter. In
addition, the President may. at any time, call out the National Guard and Air
National Guard to enforce the laws of the United States, to quell insurrection,
and in case of actual or threatened invasion. As far as the Naval Reserve, Marine
Corps Reserve, and Coast Guard Reserve are concerned, this subsection repre-
sents a substantial decrease in the number and the period of service of reservists
liable to be ordered to active duty in time of Presidential emergency.

164

Note — Excerpts From House Report 1066, 82d Cong., 2d Sess. (1952)
the ready reserve

The Ready Reserve defined by this section would contain those portions of the
reserve components which would be most liable for active duty and which would
be subject to call in time of war, or national emergency declared by the President
or the Congress, or when otherwise authorized by law. The last phrase includes
authority to order reservists to active duty pursuant to section 21 of the Universal
Military Training and Service Act which is not affected by this bill.

Note, however, that under section 234(b) , which authorizes the ordering of the
Ready Reserve to active duty in time of national emergency declared by the
President, the Congress must first determine the number of members who may be
so ordered.

The Ready Reserve would be the only part of the reserve components which
could be used in a Presidential emergency without further congressional action.
At the present time, all of the Naval Reserve, Marine Corps Reserve, and Coast
Guard Reserve could be called to active service in a Presidential emergency. In
addition, the entire National Guard and the entire Air National Guard is now
callable by the President in case of threatened or actual invasion, insurrection,
or to execute the Federal laws.

NOTE

Under this provision 1,000,000 men can be called to active duty. In addition, the
National Guard can be federalized in a national emergency, which adds several
thousand men to the total. In time of national emergency, therefore, in addition
to existing armed forces at least eight divisions of troops, over 100 squadrons of
aircraft and 55 ships, can be activated by order of the President.

40 U.S.C. 278b. Same; Exception of Certain Vital Leases During War or

Emergency

The provisions of section 278a of this title shall not apply during war or a
national emergency declared, by Congress or by the President to such leases or
renewals of existing leases of privately or publicly owned property as are certified
by the Secretary of the Army or the Secretary of the Navy, or by such person or
persons as he may designate, as covering premises for military, naval, or civilian
purposes necessary for the prosecution of the war or vital in the national emer-
gency. (Apr. 28, 1942, ch. 249, 56 Stat. 247.)

Note — Excerpt From House Report 2029, 77th Cong., 2d Sess. (1942)

The Committee on Expenditures in the Executive Departments, to whom was
referred the bill (S. 2212) to suspend during a national emergency declared by
Congress or by the President the provisions of section 322 of the Act of June 30,
1932, as amended, having considered the same, report favorably thereon with
recommendation that it do pass with amendments.

The purpose of the proposed legislation is to render inapplicable to leases
entered into by the Government for national defense purposes the present re-
strictions of section 322 of the Act of June 30, 1932, as amended (40 U.S.C. 278A),
that the annual rental of properties leased may not exceed 15 percent of the
market value of the premises on that date of the lease, and the further restriction
that alterations, improvements, and repairs may not be made in an amount in
excess of 25 percent of the amount of the rent for the first year of the rental
term, or for the entire rental term if the lease runs for less than one year.

Testimony given by witnesses from the War Department indicates that these
restrictions are impracticable in connection with leases of premises for the estab-
lishment of information and filter centers as part of aircraft warning service
installations, and also in many other types of national defense leases, as, for
example, the leasing of properties for use as offices and warehouses, for storage
or manufacturing purposes. Navy Department expressed concurrence in these
observations.

165

The Committee concurs iu the view that all leases which are to be exempted
from the provisions of section 322 of the Act of June 30, 1932, as amended, should
be certified by the Secretary of War or the Secretary of the Navy, or their
authorized representatives, as covering premises for military, naval, or civilian
purposes necessary for the prosecution of the war or vital in the national emer-
gency. The bill, as introduced, was amended by the Senate by insertion of appro-
priate language to this effect. This language will require Executive departments
or establishments other than the War and Xavy Departments to obtain a cer-
tificate from an authorized representative of the Secretary of War or the Secre-
tary of the Xavy to the effect that the lease in question is necessary for the
prosecution of the war or vital in the national emergency. If no such certificate
is obtained, the existing restrictions, which in the judgment of the Committee are
desirable where prosecution of the war effort is not involved, will be applicable.

41 U.S.C. 252. Purchases axd Contracts for Property

(a) Applicability of chapter: delegation of authority.

Executive agencies shall make purchases and contracts for property and serv-
ices in accordance with the provisions of this chapter and implementing regula-
tions of the Administrator ; but this chapter does not apply —

(1) to the Department of Defense, the Coast Guard, and the National Aero-
nautics and Space Administration, or

(2) when this chapter is made inapplicable pursuant to section 474 of Title 40
or any other law, but when this chapter is made inapplicable by such provision
of law. sections 5 and 8 of this title shall be applicable in the absence of authority
conferred by statute to procure without advertising or without regard to said
section 5 of this title.

(b) Small business concerns; share of business; advance publicity on nego-
tiated purchases and contracts for property.

It is the declared policy of the Congress that a fair proportion of the total
purchases and contracts for property and services for the Government shall be
placed with small business concerns. Whenever it is proposed to make a contract
or purchase in excess of $10,000 by negotiation and without advertising, pursuant
to the authority of paragraph (7) or (8) of subsection (c) of this section, suitable
advance publicity, as determined by the agency head with due regard to the type
of property involved and other relevant considerations, shall be given for a period
of at least fifteen days, wherever practicable, as determined by the agency head.

( c ) Negotiated purchases and contracts for property ; conditions.

All purchases and contracts for property and services shall be made by adver-
tising, as provided in section 253 of this title, except that such purchases and
contracts may be negotiated by the agency head without advertising if —

(1) determined to be necessary in the public interest during the period of a
national emergency declared hy the President or by the Congress;

(2) the public exigency will not admit of the delay incident to advertising;
(.''»> the aggregate amount involved does not exceed $2,500;

( 4 ) for personal or professional services ;

(5) for any service to be rendered by any university, college, or other educa-
tional institution ;

( C> i the property or services are to be procured and used outside the limits of
the United States and its possessions ;

( 7 ) for medicines or medical property :

(8) for property purchased for authorized resale ;

(9) for perishable or nonperishable subsistence supplies ;

(10) for property or service for which it is impracticable to secure competition ;

(11) the agency head determines that the purchase or contract is for experi-
mental, developmental or research work, or for the manufacture or furnishing of
property for experimentation, development, research, or test ;

(12) for property or services as to which the agency head determines that the
character, ingredients, or components thereof are such that the purchase or con-
tract should not be publicly disclosed ;

(13) for equipment which the agency head determines to be technical equip-
ment, and as to which he determines that the procurement thereof without adver-
tising is necessary in special situations or in particular localities in order to

166

assure standardization of equipment and interchangeability of parts and that such
standardization and interchangeability is necessary in the public interest;

(14) for property or services as to which the agency head determines that bid
prices after advertising therefor are not reasonable (either as to all or as to
some part of the requirements) or have not been independently arrived at in open
competition : Provided, That no negotiated purchase or contract may be entered
into under this paragraph after the rejection of all or some of the bids received
unless (A) notification of the intention to negotiate and reasonable opportunity
to negotiate shall have been given by the agency head to each responsible bidder
and (B) the negotiated price is the lowest negotiated price offered by any respon-
sible supplier ; or

(15) otherwise authorized by law, except that section 254 of this title shall
apply to purchases and contracts made without advertising under this paragraph.

(d) Bids in violation of antitrust laws.

If in the opinion of the agency head bids received after advertising evidence
any violation of the antitrust laws, he shall refer such bids to the Attorney
General for appropriate action.

( e ) Exceptions to section.

This section shall not be construed to (A) authorize the erection, repair, or
furnishing of any public building or public improvement, but such authorization
shall be required in the same manner as heretofore, or (B) permit any contract
for the construction or repair or buildings, roads, sidewalks, sewers, mains, or
similar items to be negotiated without advertising as required by section 253
of this title, unless such contract is to be performed outside the continental United
States or unless negotiations of such contract is authorized by the provisions of
paragraphs (1) — (3), (10) — (12), or (14) of subsection (c) of this section.

(f ) Carriage of cargo ; specification of container size.

No contract for the carriage of government property in other than government-
owned cargo containers shall require carriage of such property in cargo containers
of any stated length, height, or width. (June 30, 1949, ch. 288, title II, §302, 63
Stat. 393; July 12, 1952, ch. 703, § 1 (m), 66 Stat. 594; Aug. 28, 1958, Pub. L.
85-800; § § 1-3, 72 Stat. 966; Nov. 8, 1965, Pub. L. 89-343, § § 1, 2, 79 Stat. 1303;
Nov. 8, 1965, Pub. L. 89-348, § 1(2), 79 Stat. 1310; Mar. 16, 1968, Pub. L. 90-268,
§4, 82 Stat. 50.)

Note — Excerpts from House Report 670, 81st Cong., 1st Sess. (1949)

title iii. procurement procedure

This title follows in structure, and is identical in language with the Armed
Services Procurement Act, with a few appropriate changes and omissions.

Section 301. Declaration of purpose —

This section states that the purpose of title III is to facilitate the procure-
ment of supplies and services.

Section 302. Application and procurement methods —

* * * * * * *

(c) Initially, this subsection reaffirms the basic principle that purchases and
contracts shall be made by advertising. Negotiation is made permissible in cer-
tain excepted cases, however, to provide flexibility in Government procurement.

(1) This paragraph would permit automatic and immediate transition from
more rigid peacetime advertising procedures to a completely flexible system if
the President or the Congress declares the existence of a national emergency.

31 U.S.C. 203. Assignments of Claims; Set-off Against Assignee

All transfers and assignments made of any claim upon the United States, or
of any part or share thereof, or interest therein, whether absolute or conditional,
and whatever may be the consideration therefor, and all powers of attorney,
orders, or other authorities for receiving payment of any such claim, or of any
part or share thereof, except as hereinafter provided, shall be obsolutely null
and void, unless they are freely made and executed in the presence of at least
two attesting witnesses, after the allowance of such a claim, the ascertainment
of the amount due, and the issuing of a warrant for the payment thereof. Such
transfers assignments and powers of attorney must recite the warrant for pay-
ment and must be acknowledged by the person making them before an officer

167

having authority to take acknowledgements of deeds, and shall be certified by
the officer; and it must appear by the certificate that the officer, at the time
of the acknowledgement, read and fully explained the transfer, assignment, or
warrant of attorney to the person acknowledging the same. The provisions of
this section shall not apply to payments for rent of post office quarters made by
postmasters to duly authorized agents of the lessors.

The provisions of the preceding paragraph shall not apply in any case in which
the moneys due or to become due from the United States or from any agency
or department thereof under a contract providing for payments aggregating
$1,000 or more, are assigned to a bank, trust company, or other financing insti-
tution, including any Federal lending agency : Provided,

1 That in the case of any contract entered into prior to October 9, 1940,
no 'claim shall be assigned without the consent of the head of the department
or agency concerned ; ft 1ftilA

2 That in the case of any contract entered into after October 9, 1940, no
claim shall be assigned if it arises under a contract which forbids such
assignment ;

3. That unless otherwise expressly permitted by such contract any such assign-
ment shall cover all amounts payable under such contract and not already paid,
shall not be made to more than one party, and shall not be subject to further
assignment, except that any such assignment may be made in one party as
agent or trustee for two or more parties participating in such financing;

4. That in the event of any such assignment, the assignee thereof shall file
written notice of the assignment together with a true copy of the instrument of
assignment with (a) the contracting officer or the head of his department or
agency ; ( b ) the surety or sureties upon the bond or bonds, if any, in connection
with such contract: and (c) the disbursing officer, if any, designated in such
contract to make payment.

Notwithstanding any law to the contrary governing the validity of assign-
ments, any assignment pursuant to this section, shall constitute a valid assign-
ment for all purposes.

In any case in which moneys due or to become due under any contract are
or have been assigned pursuant to this section, no liability of any nature of
the assignor to the United States or any department or agency thereof, whether
arising from or independently of such contract, shall create or impose any
liability on the part of the assignee to make restitution, refund, or repayment
to the United States of any amount heretofore since July 1, 1950, or hereafter
received under the assignment.

Any contract of the Department of Defense, the General Services Adminis-
tration, tltc Atomic Energy Commission, or any other department or agency of
the United States designated by the President, except any such contract
Hinder which full payment has been made, may, in time of war or national
emergency proclaimed by the President (including the national emergency pro-
claimed December 16, 1950) or by Act or joint resolution of the Congress and
until such irur or national emergency has been terminated in such manner,
provide or be amended without consideration to provide that payments to be
made to the assignee of any moneys due or to become due under such contract
shall not be subject to reduction or set-off, and if such provision or one to the
same general effect has been at any time heretofore or is hereafter included
or inserted in any such contract, payments to be made thereafter to an assignee
of any moneys due or to become due under such contract, whether during or
after such war or emergency, shall not be subject to reduction or set-off for any
liability of any nature of the assignor to the United States or any department
or agency thereof which arises independently of such contract, or hereafter for
any liability of the assignor on account of (1) renegotiation under any rene-
gotiation statute or under any statutory renegotiation article in the contract,
(2) fines. (3) penalties (which term does not include amounts which may be
collected or withheld from the assignor in accordance with or for failure
to comply with the terms of the contract), or (4) taxes, social security contri-
butions, or the withholding or nonwithholding of taxes or social security con-
tributions, whether arising from or independently of such contract.

Except as herein otherwise provided, nothing in this section shall be deemed
to affect or impair rights or obligations heretofore accrued. (R.S. §3477:
May 27, 1908, ch. 206, 35 Stat. 411: Oct. 9, 1940, ch. 779, §1. 54 Stat. 1029;
May 15, 1951, ch. 75, 65 Stat. 41.)

66-474 O - 76 - 12

168

Note— Excerpt From Senate Report 217, 82d Cong., 1st Sess. (1951)

The purpose of this enactment was to encourage the participation of banks in
the financing of Government contractors under the defense program of that
time. It permitted contractors to assign to financing institutions moneys due or
to become clue under their Government contracts, and it assured the assignee
banks that, when payments were made to them by the Government pursuant
to such assignments, such payments would not be subject to reduction or set-
off on account of any claims the Government might have against the contractor
arising independently of the assigned contract.

Enacted of S. 988, with Committee amendments, would make it clear that a
bank or other financing institution taking an assignment of claims pursuant to
the act would not be subject to later recovery by the Government of amounts
previously paid to the bank as assignee, except, of course, that it would not
prevent the Government from obtaining restitution of amounts which may have
been paid as the result of fraud.

Second, the amendment would continue the provision of the present law that,
if an assigned contract contains a "no set-off" clause, payments made by the
Government to the assignee bank will not be subject to reduction or set-off be-
cause of any claims of the Government against the contractor which arise in-
dependently of the contract, but it would also be made clear that the assignee
would be protected against set-off on account of claims of the Government
against the contractor arising from renegotiation, fines, and penalties — claims
which are ordinarily regarded as arising outside of the assigned contract. In
any event, however, where the Government has claims against the contractor,
the Government would be allowed to withhold, out of payments due to an
assignee bank, any amounts in excess of the bank's interest in loans secured by
such assignments.

Finally, the authority for including the "no set-off" clause in Government
contracts, which is now restricted to the Departments of the Army, Navy, and
Air Force, would be extended to contracts entered into by the General Services
Administration, the Atomic Energy Commission, and such other agencies of
the Government as the President may designate. However, authority for the
inclusion of the clause would not be mandatory — it would be permissive in
all cases at the discretion of the Government agencies concerned.

41 U.S.C. 15. Transfers of Contracts ; Assignment of Claims ; Set-Off

Against Assignee

No contract or order, or any interest therein, shall be transferred by the
party to whom such contract or order is given to any other party, and any such
transfer shall cause the annulment of the contract or order transferred, so far
as the United States is concerned. All rights of action, however, for any
breach of such contract by the contracting parties, are reserved to the United
States.

The provisions of the preceding paragraph shall not apply in any case in which
the moneys clue or to become due from the United States or from any agency or
department thereof, under a contract providing for payments aggregating $1,000
or more, are assigned to a bank, trust company, or other financing institution,
including any Federal lending agency : Provided, 1. That in the case of any
contract entered into prior to October 9, 1940, no claim shall be assigned without
the consent of the head of the department or agency concerned; 2. That in
the case of any contract entered into after October 9, 1940, no claim shall be
assigned if it arises under a contract which forbids such assignment ; 3. That
unless otherwise expressly permitted by such contract any such assignment
shall cover all amounts payable under such contract and not already paid, shall
not be made to more than one party, and shall not be subject to further assign-
ment, except that any such assignment may be made to one party as agent or
trustee for two or more parties participating in such financing ; 4. That in the
event of any such assignment, the assignee thereof shall file written notice of the
assignment together with a true copy of the instrument of assignment with (a)
the contracting officer or the head of his department or agency ; (b) the surety
or sureties upon the bond or bonds, if any, in connection with such contract ;

169

and (c) the disbursing officer, if any, designated in such contract to make
payment.

Notwithstanding any law to the contrary governing the validity of assign-
ments, any assignment pursuant to this section shall constitute valid assign-
ment for all purposes.

In any case in which moneys due or to become due under any contract are or
have been assigned pursuant to this section, no liability of any nature of the
assignor to the United States or any department or agency thereof, whether
arising from or independently of such contract, shall create or impose any
liability on the part of the assignee to make restitution, refund, or repayment
to the United States of any amount heretofore since July 1, 1950, or hereafter
received under the assignment.

Any contract of the Department of Defense, the General Services Administra-
tion, the Atomic Energy Commission, or any other department or agency of the
United States designated by the President, except any such contract under
which full payment has been made, may, in time of war or national emergency
proclaimed by the President {including the national emergency proclaimed
December 16, 1950) or by Act or joint resolution of the Congress and until such
war or national emergency has been terminated in such manner, provide or be
amended without consideration to provide that payments to be made to the
assignee of any moneys due or to become due under such contract shall not be
subject to reduction or set-off, and if such provision or one to the same general
effect has been at any time heretofore or is hereafter included or inserted in
any such contract, payments to be made thereafter to an assignee of any moneys
due or to become under such contract whether during or after such war
or emergency, shall not be subject to reduction or set-off for any liability of any
nature of the assignor to the United States or any department or agency thereof
which arises independently of such contract, or hereafter for any liability of
the assignor on account of (1) renegotiation under any renegotiation statute
or under any statutory renegotiation article in the contract, (2) fines, (3)
penalties (which term does not include amounts which may be collected or with-
held from the assignor in accordance with or for failure to comply with the
terms of the contract), or (4) taxes, social security contributions, or the with-
holding or nonwitholding of taxes or social security contributions, whether
arising from or independently of such contract.

Except as herein otherwise provided, nothing in this section shall be deemed to
affect or impair rights or obligations heretofore accrued. (R. S. §3737; Oct. 9,
1940, ch. 779, § 1, 54 Stat. 1029; May 15, 1951, ch. 75, 65 Stat. 41.)

Note — Excerpt From Senate Report 217, 82d Cong., 1st Sess. (1951)

The Committee on Banking and Currency, to whom was referred the bill
(S. 998) to facilitate the financing of defense contracts by banks and other
financing institutions, to amend the Assignment of Claims Act of 1940, and for
other purposes, having considered the same, report favorably thereon with
amendments and recommend that the bill, as amended, do pass.

***** * *

Enactment of S. 99S, with Committee amendment, would make it clear that a
bank or other financing institution taking an assignment of claims pursuant to
the act would not be subject to later recovery by the Government of amounts
previously paid to the bank as assignee, except, of course, that it would not pre-
vent the Government from obtaining restitution of amounts which may have
been paid as the result of fraud.

Secondly, the amendment would continue the provision of the present law
that, if an assigned contract contains a "no set-off" clause, payments made by
the Government to the assignee bank will not be subject to reduction or set-off
because of any claims of the Government against the contractor which arise
independently of the contract, but it would also be made clear that the assignee
would be protected against set-off on account of claims of the Government against
the contractor arising from renegotiations, fines, and penalties — claims which are
ordinarily regarded as arising outside of the assigned contract. In any event,
however, where the Government has claims against the contractor, the Govern-
ment would be allowed to withhold, out of payments due to an assignee bank,
any amounts in excess of the bank's interest in loans secured by such assignments.

170

Finally, the authority for including the "no set-off" clause in Government con-
tracts, which is now restricted to the Departments of the Army, Navy, and Air
Force, would be extended to contracts entered into by the General Services Ad-
ministration, the Atomic Energy Commission, and such other agencies of the
Government as the President may designate. However, authority for the inclu-
sion of the clause would not be mandatory — it would be permissive in all cases
at the discretion of the Government agencies concerned.

Mr. Roth. Mr. President, as a sponsor of the National Emergencies
Act, I am pleased with the rapid consideration which the Senate
is giving to this important legislation. I strongly urge its passage
today.

This bill represents another effort by Congress to insure that Con-
gress and the President share equally the responsibility for major na-
tional policy decisions. This bill, for the first time, will establish
criteria under which a national emergency can be declared by the
President and provides for its automatic termination unless extended
by Congressional action.

It also terminates four national emergencies which are still in effect.
Most Americans do not know that since March 6, 1933, the United
States has been in an official state of national emergency. The 1933
emergency was declared to deal with the Depression. In addition, three
other national emergencies are concurrently in effect — the December
16, 1950, emergency in connection with the Korean War; the March 23,

1970, emergency to handle the Post Office strike; and the August 15,

1971, emergency to carry out certain currency restrictions to help our
balance of payments.

Because Congress has been remiss in not terminating these emergen-
cies, many outdated statutes designed to give the President wide-sweep-
ing powers to meet the emergency situations of those times remain on
the books. It is my understanding that in its almost two years of dili-
gent work, the Special Committee on the Termination of the National
Emergency compiled some 470 provisions of the United States Code
which in some way or another delegate extraordinary powers to the
President in times of war or national emergency.

It is important and essential that in such times, the President does
have the powers needed to deal with the situation. But it is also essen-
tial that when the emergency is over, the emergency powers either
terminate or are carefully reviewed to insure that they make sound
and responsible permanent legislation.

In times of emergency, important legislation does not receive the
time and attention which it would in normal times.

One provision that this bill would repeal gives the President, the
Secretary of the Army, or any general the authority to declare any
part or all of the United States a military zone, within which any act
he designates may be punished as a crime. Such a sweeping provision
represents a potential threat to American liberties and should cer-
tainly be struck from the books.

In my judgment, this bill devises a sensible way of insuring that
rapid action can be taken to meet an emergency situation while safe-
guarding against the arbitrary and irresponsible use of such power by
a future President, Under the bill, the President is authorized to de-

171

clare a national emergency whenever he believes it "essential to the
preservation, protection, and defense of the Constitution, and is essen-
tial to the common defense, safety, or well-being of the territory and
people of the United States."

However, the emergency could be terminated by Congress by con-
current resolution and. if not. would expire at the end of six months
unless explicitly continued by Congress. Moreover, the President
would be required during the emergency to keep a list of all Executive
orders, promulgations, rules, et cetera, made with respect to the emer-
gency and transmit the texts to Congress. This provision will provide
a comprehensive overview of all extraordinary acts taken during an
emergency and a measure of Congressional oversight over such acts.

I believe that this bill strikes a careful balance between the need for
the President to act in the case of war or another kind of national
emergency and the requirements of shared powers and responsibilities
between Congress and the President. I hope it will be passed today and
speedily acted upon by the other House and signed into law by the
President.

Mr. Mattttas. Mr. President. I urge the adoption of the amendment.

The Acting President pro tempore. The question is on agreeing to
the amendment in the nature of a substitute.

The amendment was agreed to.

The bill was ordered to be engrossed for a third reading, was read
the third time, and passed, as follows :

S. 3957

An act to terminate certain authorities with respect to national emergencies still
in effect, and to provide for orderly implementation and termination of future
national emergencies

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "National
Emergencies Act."

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES

Sec 101. (a) All powers and authorities possessed by the President, any other
officer or employee of the Federal Government, or any Executive agency, as
defined in section 105 of Title 5. United States Code, as a result of the existence
of any declaration of national emergency in effect immediately prior to one year
after the date of enactment of this Act are terminated one year from the date of
such enactment. Such termination shall not affect —

(1) any action taken or proceeding pending not finally concluded or determined
on such date ;

(2) any action or proceeding based on any act committed prior to such date ; or

(3) any rights or duties that matured or penalties that were incurred prior to
such date.

TITLE II— DECLARATION OF FUTURE NATIONAL EMERGENCIES

Sec 201. (a) In the event the President finds that a proclamation of a national
emergency is essential to the preservation, protection and defense of the Con-
stitution or to the common defense, safety, or well-being of the territory or people
of the L T nited States, the President is authorized to proclaim the existence of a
national emergency. Such proclamation shall immediately be transmitted to the
Congress and published in the Federal Register.

172

(b) Any provisions of law conferring powers and authorities to be exercised
during a national emergency shall be effective and remain in effect ( 1 ) only when
the President (in accordance with subsection (a) of this section), specifically
declares a national emergency, and (2) only in accordance with this Act. No law
enacted after the date of enactment of this Act shall supersede this title unless
it does so in specific terms, referring to this title, and declaring that the new law
supersedes the provisions of this title.

Sec. 202. (a) Any national emergency declared by the President in accordance
with this title shall terminate if —

(1) Congress terminates the emergency by concurrent resolution ; or
1(2) the President issues a proclamation terminating the emergency.

At the end of each year following the declaration of an emergency which is still
in effect, the President shall publish in the Federal Register and transmit to
the Congress a notice stating that the emergency is still in effect. Any national
emergency declared by the President shall be terminated on the date specified in
any concurrent resolution referred to in clause (1) of this subsection, and any
powers or authorities exercised by reason of said emergency shall cease to be
exercised after such specified date, except that such termination shall not affect —

(A) any action taken or proceeding pending not finally concluded or de-
termined on such date ;

(B) any action or proceeding based on any act committed prior to such date;
or

(b) Not later than six months after a national emergency is declared, and not
later than the end of each six-month period thereafter that such emergency con-
tinues, each House of Congress shall meet to consider a vote on a concurrent
resolution to determine whether that emergency shall be terminated.

(c) (1) A concurrent resolution to terminate or continue a national emergency
declared by the President shall be referred to the appropriate committee of the
House of Representatives or the Senate, as the case may be. One such concurrent
resolution shall be reported out by such committee together with its recommenda-
tions within fifteen calendar days, unless such House shall otherwise determine
by the yeas and nays.

(2) Any concurrent resolution so reported shall become the pending business
of the House in question (in the case of the Senate the time for debate shall be
equally divided between the proponents and the opponents) and shall be voted
on within three calendar days thereafter, unless such House shall otherwise
determine by yeas and nays.

(3) Such a concurrent resolution passed by one House shall be referred to the
appropriate committee of the other House and shall be reported out by such com-
mittee together with its recommendations within fifteen calendar days and shall
thereupon become the pending business of such House and shall be voted upon
within three calendar days, unless such House shall otherwise determine by yeas
and nays.

(4) In the case of any disagreement between the two Houses of Congress with
respect to a concurrent resolution passed by both Houses, conferees shall be
promptly appointed and the committee of conference shall make and file a report
with respect to such concurrent resolution within six calendar days after the
legislation is referred to the committee of conference. Notwithstanding any rule
in either House concerning the printing of conference reports in the Record or
concerning any delay in the consideration of such reports, such report shall be
acted on by both Houses not later than six calendar days after the conference
is filed. In the event the conferees are unable to agree within forty-eight hours,
they shall report back to their respective Houses in disagreement.

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and
section 602(b) of this Act are enacted by Congress —

(A) as an exercise of the rulemaking power of the Senate and the House of
Representatives, respectively, and as such they are deemed a part of the rules of
each House, respectively, but applicable only with respect to the procedure to be
followed in the House in the case of resolutions described by this subsection ; and
they supersede other rules onlv to the extent that thev are inconsistent therewith ;
and

(B) with full recognition of the constitutional right of either House to change
the rules (so far as relating to the procedure of that House) at any time, in the

173

same manner, and to the same extent as in the case of any other rule of that
House.

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec. 301. Whenever Congress declares war, any provisions of law conferring
powers and authorities to be exercised during time of war shall be effective from
the date of such declaration.

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES

Sec 401. When the President declares a national emergency no powers or au-
thorities made available by statute for use in the event of an emergency shall be
exercised unless and until the President specifies the provisions of law under
which he proposes that he, or other officers, will act. Such specification may be
made either in the declaration of a national emergency, or by one or more con-
temporaneous or subsequent Executive orders published in the Federal Register
and transmitted to the Congress.

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS
OF THE PRESIDENT

Sec 501. (a) When the President declares a national emergency, or Congress
declares war, the President shall be responsible for maintaining a file and index
of all significant orders of the President, including Executive orders and procla-
mations, and each such Executive agency shall maintain a file and index of all
rules and regulations, issued during such emergency or war issued pursuant to
such declarations.

(c) When the President declares a national emergency or Congress declares
war, the President shall transmit to Congress, within thirty days after the end
of each three-month period after such declaration, a report on the total expendi-
tures incurred by the United States Government during such three-month period
which are directly attributable to the exercise of powers and authorities con-
ferred by such declaration. Not later than thirty days after the termination of
each such emergency or war, the President shall transmit a final report on all
such expenditures.

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY
POWER AND OTHER STATUTES

Sec 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C.
1481 (a)) is amended —

(1) at the end of paragraph (9), by striking out "; or" and inserting in lieu
thereof a period ; and

(2) by striking out paragraph (10).

(b) Section 2667 (b) of Title 10 of the United States Code is amended—

(1) by inserting -and" at the end of paragraph (3) :

(2) by striking out paragraph (4) ; and

(3) by redesignating paragraph (5) as (4).

(c) The joint resolution entitled "Joint resolution to authorize the temporary
continuation of regulation of consumer credit," approved August 8, 1947, (12
U.S.C. 249) is repealed.

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C.
831d(m) ) is repealed.

(e) Section 1383 of Title 18, United States Code, is repealed.

(f ) Section 6 of the Act entitled "An Act to amend the Public Health Service
Act in regard to certain matters of personnel and administration, and for other
purposes," approved February 28, 1948, is amended bv striking out subsections

(b), (c), (d), (e), and (f) (42 U.S.C. 211b).

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742) is
repealed.

( h ) This section shall not affect —

(1) any action taken or proceeding pending not finally concluded or determined
at the time of repeal ;

(2) any action or proceeding based on any act committed prior to repeal; or

174

(3) any rights or duties that matured or penalties that were incurred prior
to repeal.

Sec. 602. (a) The provisions of this Act shall not apply to the following pro-
visions of law, the powers and authorities conferred thereby, and actions taken,
thereunder :

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95(a) ;
50U.S.C. App. 5(b)) ;

(2) Section 673 of Title 10, United States Code;

(3) Act of April 28, 1942 (40 U.S.C. 278b) ;

(4) Act of June 30, 1949 (41 U.S.C. 252) ;

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ;

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15).

(b) Each committee of the House of Representatives and the Senate having
jurisdiction with respect to any provision of law referred to in subsection (a) (1)-
(6) of this section shall make a complete study and investigation concerning
that provision of law and make a report, including any recommendations and
proposed revisions it may have, to its respective House of Congress within two
hundred and seventy days after the date of enactment of this Act.

Mr. Mansfield. Mr. President, I move to reconsider the vote by
which the bill was passed.

Mr. Mathias. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. Mansfield. I thank the Senator from Idaho.

INTRODUCTION OF H.R. 16668, 93rd CONGRESS

[Congressional Record — v. 120. Sept. 16. 1974 — pp. H9266. H9296]

Bill To End Uxtermixated National Emergencies

The Speaker. Under a previous order of the House, the gentleman
from New Jersey (Mr. Rodino) is recognized for 5 minutes.

Mr. Rodixo. Mr. Speaker, most Americans are unaware that they
have been living under a continuous state of national emergency since
1933. In fact, there are four states of national emergency now in force :

The national emergency declared by President Roosevelt on March
6, 1933, to meet the crisis of the depression ;

The December 16. 1950, national emergency declared by President
Truman in order to prosecute the Korean War:

The national emergency declared by President Nixon on March 23,

1970. to deal with the Post Office strike ; and

The national emergency declared by President Nixon on August 15,

1971. to carry out currency restrictions and foreign economic controls.
These four declarations of national emergency confer upon the Presi-
dent the power contained in over 470 emergency statutes to control the
lives of all American citizens in ways which are justified only in an
actual emergency. Congress has provided in statutes that during a
national emergency the President may, among other things, seize
property and commodities, organize and control the means of produc-
tion, call to active duty 2.5 million reservists, assign military forces
abroad, seize and control all means of transportation and communica-
tion, restrict travel, and institute martial law.

The exercise of authority under emergency statutes is taking place
today when no national emergency in fact exists. Therefore. Mr.
Speaker. I am introducing today a bill to end national emergencies de-
clared by President- over the past four decades which have never been
terminated. This proposal also would control the circumstances under
which national emergencies are declared by Presidents in the future,
and restrict the exercise of emergency authority to actual emergency
situations only.

A similar bill has been introduced in the Senate by Senators Mathias
and Church and has the support of President Ford. In my view, this
proposal is important legislation which should be enacted before Con-
gress adjourns this year.

It is my hope that this bill will receive the bipartisan support it
merits. Its enactment would benefit the American people and do credit
to the Congress by limiting the use of emergency powers to their proper
context.

The bill does not take any emergency powers away from the Presi-
dent. Rather, it insures that such powers are exercised only during an
actual emergency and that both Congress and the public are kept in-
formed of the exercise of such emergency powers.

(175)

176

Declarations of national emergency presently in effect are terminated
by the bill and future declarations of national emergency are limited
to 180 days unless extended by Congress or declared anew. A system of
reporting to Congress with respect to the exercise of extraordinary
authority during a national emergency is established. Finally, certain
emergency provisions, no longer needed under any circumstances,
would be repealed if this bill is enacted into law.

TEXT OF H.R. 16668, 93rd CONGRESS

A BILL To terminate certain national emergencies still in effect, and to provide for the
orderly implementation and termination of future national emergencies

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,

SHORT TITLE

Section 1. This Act may be cited as the "National Emergencies Act".

LIMITING THE EXERCISE AND DURATION OF EMERGENCY AUTHORITIES

Sec. 2. No authority conferred under any law of the United States upon the
President or upon any other officer, employee, agency, or other entity of the Gov-
ernment of the United States, as the result of any national emergency, shall be
exercised except as provided under this Act. Any national emergency declared
or otherwise designated as in effect on the date of the enactment of this Act is
terminated on the two hundred and seventieth day after the date of the enact-
ment of this Act, unless otherwise previously terminated.

DECLARING NATIONAL EMERGENCIES

Sec. 3. ( a ) In the event the President finds that the proclamation of a national
emergency is essential to the preservation, protection, and defense of the Con-
stitution, and is essential to the common defense, safety, or well-being of the ter-
ritory and people of the United States, the President is authorized to declare the
existence of a national emergency. Such declaration shall be made publicly,
and shall be published as soon as practicable in the Federal Register.

i l)i Any authority conferred under any law to be exercised during a national
emergency declared or otherwise designated as in effect by the President shall
be in effect in accordance with the provisions of that law and this Act, but only
if the President has declared a national emergency in accordance with this
section.

SPECIFYING NATIONAL EMERGENCIES' LEGAL BASIS

Sec 4. Any authority conferred under any law to be exercised with respect
to a war or a national emergency shall not be exercised until the President states
in an Executive order issued with respect to that war or emergency, the specific
provisions of law under which such authority is to lie exercised. Such Executive
order shall be transmitted to the Congress forthwith and shall be published as
soon as practicable in the Federal Register.

TERMINATING NATIONAL EMERGENCIES

Sec 5. (a) Except as otherwise provided in subsection (b) or (c) of this
section, no authority conferred by law to be exercised with respect to a national
emergency shall be exercised with respect to the emergency after that emergency
is terminated, and any national emergency declared or otherwise designated in
effect shall terminate on the one hundred eightieth day after the date of its
declaration or designation.

(b) The Congress may by concurrrent resolution —

(1) determine that the national emergency is terminated on a date prior
to the date of its termination under the provisions of subsection (a) of this
section, in which case the emergency terminates on the day the concurrent
resolution is finally agreed to by both Houses of the Congress, or on the day
certain designated in the concurrent resolution, but the day certain shall not

(177)

178

be earlier than the day on which the concurrent resolution is finally agreed to
by both Houses of the Congress ; or

(2) determine that the national emergency is extended, in which case the
national emergency terminates on the date to which it has been so extended
(which date shall not be later than one hundred eighty days after the date
on which the concurrent resolution is finally agreed to by both Houses of the
Congress), but no resolution extending the termination date of a national
emergency shall be valid for the purposes of this paragraph if finally agreed
to prior to ten days before the date on which such emergency would termi-
nate unless so extended,
(c) The President may determine that the national emergency is terminated
on a date prior to the date of its termination under the provisions of subsection
(a) or (b) of this section, in which case the emergency terminates on the day
the President declares in an Executive order it is terminated.

RECORDS AND REPORTS ON EXERCISE OF AUTHORITIES

Sec 6. In time of war or national emergency, the President shall cause to be
maintained a current and accurate record (including an index thereof) of all
instances of the exercise (including any rules or regulations, by whatever name
called, established for that exercise) by the President or by any other officer,
employee, agency, or entity of the Executive branch of the Government of the
United States, of any authority conferred under law to be used during a war or
national emergency, or both. Such record shall be made available, for inspection
or copying, at all times during its maintenance, to either and both Houses of
Congress, and to such committees of Congress as determined by the Speaker of
the House and the President pro tempore of the Senate for their respective
Houses in accordance with the rules of that House, and a copy of the entirety
of such record shall be transmitted to the Congress upon the termination of the
war or emergency with respect to which such record was kept. The Houses of
Congress, its committees, Members, officers, and employees shall take such steps
as are necessary to assure the proper confidentiality of any such record so
available.

NO REPEAL BY IMPLICATION

Sec. 7 No law enacted after the date of the enactment of this Act shall be
construed to repeal or supersede this Act unless it does so in specific terms,
referring to this Act, and declaring that the new law supersedes the provisions
of this Act.

REPEAL OF CERTAIN NATIONAL EMERGENCY PROVISIONS

Sec 8. The following provisions of law are repealed :

(7 U.S.C. 1741), (7 U.S.C. 1742), (7 U.S.C. 1743), (7 U.S.C. 1744), (7
U.S.C. 1745), (7 U.S.C. 1746), (7 U.S.C. 1747), (8 U.S.C. 1481(a) (10)), (10
U.S.C. 2667(b) (4) ), (10 U.S.C. 4025), (10 U.S.C. 9025), (12 U.S.C. 95), (12
U.S.C. 95(a)), (12 U.S.C. 249), (12 U.S.C. 1703), (12 U.S.C. 1705), (12
U.S.C. 1748b (a) ), (16 U.S.C. 831d(m)), (18 U.S.C. 1383), (26 U.S.C. 168),
(41 U.S.C. 101), (41 U.S.C. 102), (41 U.S.C. 103), (41 U.S.C. 104), (41 U.S.C.
105), (41 U.S.C. 106), (41 U.S.C. 107), (41 U.S.C. 108), (41 U.S.C. 109),
(41 U.S.C. 110), (41 U.S.C. Ill), (41 U.S.C. 112), (41 U.S.C. 113), (41 U.S.C.
114), (41 U.S.C. 115), (41 U.S.C. 116), (41 U.S.C. 117), (41 U.S.C. 118), (41
U.S.C. 119), (41 U.S.C. 120), (41 U.S.C. 121), (41 U.S.C. 122), (41 U.S.C.
123), (41 U.S.C. 124), (41 U.S.C. 125), (42 U.S.C. 211b), (42 U.S.C. 1592),
(50 U.S.C. 9(e) ), and (50 U.S.C. App. 1742).

INTRODUCTION OF H.R. 3884, 94th CONGRESS

[Congressional Record — v. 121, Feb. 27, 1975 — p. H1225]
Providing for Orderly Implementation of Future Emergencies

The Speaker pro tempore. Under a previous order of the House, the gentleman
from New Jersey (Mr. Rodino) is recognized for 5 minutes.

Mr. Rodino. Mr. Speaker, I have today introduced a bill providing for the
termination of all powers and authorities relating to existing national emergen-
cies and providing for the orderly implementation of future emergencies and for
their continuation or termination. The bill is similar to the bill I introduced on
the same subject in the 93d Congress and would meet the pressing need for statu-
tory resolution and definition in this area of the law.

The time is overdue for the termination of existing emergencies and for a clear
Congressional mandate that our governmental operations be conducted under
regular and orderly processes of law rather than under provisions which were
intended to be effective for limited periods to meet specific emergency conditions.
In some instances where there has been a long and accepted use of some of this
emergency authority that experience would seem to indicate a need for per-
manent legislation to deal with particular problems and situations. On the other
hand, the actual need for such emergency authority may have disappeared with
the emergency, and the appropriate committees of the Congress can consider
legislation which can better serve our current needs and deal with the problems
we face today.

It is intended that consideration of this bill will be initiated in the near future
by the Committee on the Judiciary.

(179)

TEXT OF H.R. 3884, 94th CONGRESS

A BILL To terminate certain authorities with respect to national emergencies still in
effect, and to provide for orderly implementation and termination of future national j
emergencies

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "National
Emergencies Act."

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES

Sec. 101. (a) All powers and authorities possessed by the President, any
other officer or employee of the Federal Government, or any Executive agency, as
defined in section 105 of Title 5, United States Code, as a result of the existence
of any declaration of national emergency in effect on the date of enactment of
this Act are terminated one year from the date of such enactment. Such ter-
mination shall not affect —

(1) any action taken or proceeding pending not finally concluded or de-
termined on such date ;

(2) any action or proceeding based on any act committed prior to such
date ; or

(3) any rights or duties that matured or penalties that were incurred prior
to such date.

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES

Sec. 201. (a) In the event the President finds that a proclamation of a na-
tonal emergency is essential to the preservation, protection and defense of
the Constitution or to the common defense, safety, or well-being of the territory
or people of the United States, the President is authorized to proclaim the
existence of a national emergency. Such proclamation shall immediately be
transmitted to the Congress and published in the Federal Register.

(b) Any provisions of law conferring powers and authorities to be exercised
during a national emergency shall be effective and remain in effect (1) only
when the President (in accordance with subsection (a) of this section), specif-
ically declares a national emergency, and (2) only in accordance witli this
Act. No law enacted after the date of enactment of this Act shall supersede this
title unless it does so in specific terms, referring to this title, and declaring that
the new law supersedes the provisions of (his title.

Sec. 202. (a) Any national emergency declared by the President in accord-
ance with this title shall terminate if —

(1) Congress terminates the emergency by concurrent resolution; or

(2) the President issues a proclamation terminating the emergency.
At the end of each year following the declaration of an emergency which is still
in effect, the President shall publish in the Federal Register and transmit to
the Congress a notice stating that the emergency is still in effect. Any national
emergency declared by the President shall be terminated on the date specified
in any concurrent resolution referred to in clause CI) of this subsection, and
any powers or authorities exercised by reason of said emergency shall cease to be
exercised after such specified date, except that such termination shall not affect —

(A) any action taken or proceeding pending not finally concluded or deter-
mined on such date ;

(B) any action or proceeding based on any act committed prior to such
date : or

(180)

181

i b ) Not later than six months after a national emergency is declared, and not
later than the end of each six-month period thereafter that such emergency con-
tinues, each House of Congress shall meet to consider a vote on a concurrent
resolution to determine whether that emergency shall be terminated.

(c) (1) A concurrent resolution to terminate a national emergency declared by
the President shall be referred to the appropriate committee of the House of
Representatives or the Senate, as the case may be. One such concurrent resolu-
tion shall be reported out by such committee together with its recommendations
within fifteen calendar days, unless .such House shall otherwise determine by
the yeas and nays.

(2) Any concurrent resolution so reported shall become the pending business
of the House in question (in the case of the Senate the time for debate shall be
equally divided between the proponents and the opponents) and shall be voted
on within three calendar days thereafter, unless such House shall otherwise
determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with
respect to a concurrent resolution passed by both Houses, conferees shall be
promptly appointed and the committee of conference shall make and file a report
with respect to such concurrent resolution within six calendar days after the
legislation is referred to the committee of conference. Notwithstanding any rule
in either House concerning the printing of conference reports in the Record or
concerning any delay in the consideration of such reports, such report shall be
acted on by both Houses not later than six calendar days after the conference
report is filed. In the event the conferees are unable to agree within forty-eight
hours, they shall report back to their respective Houses in disagreement.

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and
section 602 (b) of this Act are enacted by Congress —

(A) as an exercise of the rulemaking power of the Senate and the House
of Representatives, respectively, and as such they are deemed a part of the
rules of each House, respectively, but applicable only with respect to the
procedure to be followed in the House in the case of resolutions described
by this subsection ; and they supersede other rules only to the extent that
they are inconsistent therewith ; and

(B) with full recognition of the constitutional right of either House to
change the rules (so far as relating to the procedure of that House) at any
time, in the same manner, and to the same extent as in the case of any other
rule of that House.

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec. 301. Whenever Congress declares war, any provisions of law conferring
powers and authorities to be exercised during time of war shall be effective from
the date of such declaration.

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES

Sec. 401. When the President declares a national emergency no powers or
authorities made available by statute for use in the event of an emergency shall
be exercised unless and until the President specifies the provisions of law under
which he proposes that he, or other officers will act. Such specification may be
made either in the declaration of a national emergency, or by one or more
contemporaneous or subsequent Executive orders published in the Federal
Register and transmitted to the Congress.

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS OF

THE PRESIDENT

Sec. 501. (a) When the President declares a national emergency, or Congress
declares war, the President shall be responsible for maintaining a file and index
of all significant orders of the President, including Executive orders and

182

proclamations, and each such Executive agency shall maintain a file and index
of all rules and regulations, issued during such emergency or war issued pur-
suant to such declarations.

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY
POWER AND OTHER STATUTES

Sec. 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C.
1481(a)) is amended —

(1) at the end of paragraph (9), by striking out "; or" and inserting in
lieu thereof a period ; and

(2) by striking out paragraph (10).

(b) Section 2667(b) of Title 10 of the United States Code is amended—

(1) by inserting "and" at the end of paragraph (3) ;

(2) by striking out paragraph (4) ; and

(3) by redesignating paragraph (5) as (4).

(c) The joint resolution entitled "Joint resolution to authorize the temporary
continuation of regulation of consumer credit," approved August 8, 1947 (12
U.S.C. 249), is repealed.

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C.
831d(m)) is repealed.

(e) Section 1383 of Title 18, United States Code, is repealed.

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742)
is repealed.

(h) This section shall not affect —

(1) any action taken or proceeding pending not finally concluded or deter-
mined at the time of repeal ;

(2) any action or proceeding based on any act committed prior to repeal ;
or

(3) any rights or duties that matured or penalties that were incurred
prior to repeal.

Sec. 602. (a) The provisions of this Act shall not apply to the following provi-
sions of law, the powers and authorities conferred thereby, and actions taken,
thereunder :

(1) Section 5 (b) of the Act of October 6, 1917, as amended (12 U.S.C.
95(a) ; 50 U.S.C. App. 5(b) ) ;

(2) Section 673 of Title 10, United States Code ;

(3) Act of April 28, 1942 (40 U.S.C. 278b) ;

(4) Act of June 30, 1949 (41 U.S.C. 252) ;

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ;

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15).

(b) Each committee of the House of Representatives and the Senate having
jurisdiction with respect to any provision of law referred to in subsection (a)
(l)-(6) of this section shall make a complete study and investigation concern-
ing that provision of law and make a report, including any recommendations and
proposed revisions it may have, to its respective House of Congress within two
hundred and seventy days after the date of enactment of this Act.

183

94th Congress ) HOUSE OF REPRESENTATIVES ( Keport

1st Session f ' 1 No. 94-238

NATIONAL EMERGENCIES

May 21, 1975. — Committed to the Committee "of the Whole House on the state of
the Union and ordered to be printed.

Mr. Flowers, from the Committee on the Judiciary, submitted the

following

l *-5

REPORT

[To accompany H.R. 3884]

The Committee on the Judiciary, to whom was referred the bill
(H.R. 3884) to terminate certain authorities with respect to national
emergencies still in effect, and to provide for orderly implementation
and termination of future national emergencies, having considered the
same, reports favorably thereon with amendments and recommends'
that the bill as amended do pass.

The amendments are as follows :

Page 2, line 2 : Strike u one year" and insert "two years".

Page 2, lines 13 and 14 : Strike "pursuant to a statute authorizing
him to declare a national emergency".

Page 3, line 21 : After "clause (1)", insert "or on the date specified
in a proclamation by the President terminating the emergency as
provided in clause (2) ".

Page 6 : Strike all of lines 14, 15, 16, 17, 18, and 19.

Page 6, line 20 : After "TITLE", strike "IV" and insert "III".

Page 6, line 22 : After "SEC", strike "401" and insert "301".

Page 7, line 6 : After "TITLE", strike "V" and insert "IV".

Page 7, line 8 : After "SEC", strike "501" and insert "401".

Page 7, line 12 : After "each", strike "such".

Page 7, line 22 : After "within" strike "thirty" and insert "ninety",
and after "each" strike "three-" and insert "six-".

Page 7, line 25 : jStrike "three-month" and insert "six-month".

Page 8, line 2 : Strike "thirty" and insert "ninety".

Page 8, line 5 : After "TITLE", strike "VI" and insert "V".

Page 8, line 8 : After "SEC", strike "601" and insert "501".

Page 8, line 24 : After "Act of 1933" insert "as amended".

Page 9, line 18 : After "SEC", strike "602" and insert "502".

Page 9, line 22 : Strike "95 (a) " and insert "95a".

Page 9 : Strike all of line 23.

66-474 O - 76 - 13

184

Page 9. line 24 : Strike " (3) ,? and insert " (2) ".
Page 9. line 25 : Strike " (4) " and insert " (3) »
Page 10, line 1 : Strike " i 5 ) " and insert " (4) ".
Page 10. line 3 : Strike "(6) " and insert ;; (5) ".

Page 10. line 4: At the end of the sentence, strike the period and
insert a semi-colon.

Page 10, after line 4 : Insert :

"(6) Public Law 85-804 (Act of Aug. 28, 1958, 72 Stat. 972:
50 U.S.C. 1431-1435);
"(7) Section 2304 (a)(1) of Title 10. United States Code:
• B) Sections 3313, 6386(c) and S313 of Title 10, United States
Code."
Page 10. line 7: Strike "(1) (6) »

Purpose

The purpose of the proposed legislation, as amended, is to terminate
all powers and authorities under any national emergency existing on
the date of enactment as of two years from that date.

As to future emergencies, the bill provides procedures and require-
ments concerning their declaration and termination and provides for
powers and authority to be exercised in the case o? future emergencies.
It would also require that records be maintained of significant orders
of the President and of agency rules and regulations issued during
a war or national emergency, and that such orders and rules and regu-
lations be transmitted to the Congress. A report of all expenditures
directly attributable to the exercise of powers and authorities under
a declaration of national emergency would have to be transmitted
to the Congress within ninety days after each six month period under
the declaration.

The bill provides for the repeal of certain obsolete statutes and for
the continuance in effect of emergency powers and authority under
listed statutes which are important to present functions of the
Government.

Statement

This is a bill which provides for a statutory resolution and defini-
tion concerning the exercise of the powers and authorities in connec-
tion with national emergencies which may occur in the future. By
providing for a termination of powers and authorities relating to exist-
ing emergencies, the bill will make it possible for our Government to
function in accordance with regular and normal provisions of law
rather than through special exceptions and procedures which were
intended to be in effect for limited periods during specific emergency
conditions.

185

and other international problems. It can therefore be stated that there
has been an emergency in one form or another for the last 43 years.
This bill will have the positive effect of ending the practice of conduct-
ing governmental activity under authority of laws which derive force
from emergencies declared years in the past to meet problems and
situations which have long since disappeared or are now drastically
changed. The history of continued and almost routine utilization of
such emergency authorities for years after the original crisis has
passed in the opinion of this committee serves only to emphasize the
fact that there is an urgent need to provide adequate laws to meet our
present day needs. Legislation intended for use in crisis situations is
by its nature not well suited to normal, day-to-day government opera-
tions. It is also conceivable that the existence of emergency authority
has actually discouraged legislative action. Routine statutory authori-
zation may not have been sought by executive agencies or granted by
the Congress because it was not then currently needed. One of the
basic purposes of this bill is to provide a legislative basis for a return
to a more rational and normal state of law in this phase of govern-
ment operations and to eliminate unnecessary and undesirable emer-
gency powers without, at the same time, upsetting dispositions that
are routine and essential portions of our present legislative and admin-
istrative structure. In providing procedures to govern future emer-
gencies, the bill will establish a system which will prevent such a
continuing reliance on emergency statutes from recurring.

Prior to the consideration of legislation in the Senate, the Senate
Special Committee on the Termination of the National Emergency
conducted a two year study on the problems, application and scope of
emergency statutes. An important aspect of that statute concerned the
identification and analysis of emergency statutes. The bill S. 3957,
which passed the Senate late in the last Congress, was to a large degree
a product of the work of that special committee. The present bill H.R.
3884 incorporates the basic provisions of the earlier bill S. 3956 as it
was finally passed by the Senate and referred to this Committee in
the 93rd Congress. As is evidenced by the departmental reports
received by this Committee on the earlier bill which are printed in this
report and commented upon in connection with the provisions of the
bill, the present bill and the recommendations of the Committee are
a continuation of the work begun in the last Congress.

In the 98rd Congress, the bill H.R. 16668 on the subject of National
Emergencies was introduced and referred to the Committee, and on
October 7. 1974. as has been noted, a similar bill. S. 3957. passed the
Senate and was also referred to this Committee shortly before the end
of the Congress. "While it was not possible- to complete consideration
of those measures in that Congress, the departmental reports received
late in the year indicated general support for the bill as passed by the
Senate. The reports contained additional material and background
information which were considered bv the committee in connection
with the current bill, H.R. 3884. As introduced. H.R. 3884, with two
changes, was identical to the bill passed by the Senate last fall. In
addition to a technical change suggested by the Office of Management
and Budget in its report on the earlier bill, the language of the bill
was changed to provide that the termination of the powers and author-
ities relating to existing emergencies in section 101 of Title I of the

186

bill would affect those powers and authorities under emergencies in
effect on the date of enactment rather than one year from date of enact-
ment as in the earlier version.

The report of the Committee received from the Department of De-
fense recognized that world conditions and national conditions have
changed since the state of national emergency was declared in 1950.
That department stated that it recognized the desirability of terminat-
ing existing states of emergency and further stated that it has no ob-
jection to their termination. The Department of Defense referred to
the fact that some of these emergency authorities had over the years
come to be relied upon in the day-to-day operations of the Department
and that these continuing needs would have to be met. The Commit-
tee considered the effect of the bill on these functions and concluded
that the two year period fixed in the amended bill would provide the
Congress with a reasonable opportunity to consider permanent legisla-
tion to replace the authority provided under the specific emergency
provisions that now provide statutory authority for such day-to-day
functions. This period for orderly transition should preclude any
undue disruption in government operations.

The report received from the Department of the Treasury on No-
vember 12, 1974, was considered by the Committee with particular ref-
erence to statutory authority for the regulations applicable during
periods of financial crisis to banks which are members of the Federal
Reserve System and the limitations and restrictions on the activities
of such banks during those periods. That report stated the position of
that department concerning the authority providing for regulation
during emergencies of banking transactions, gold and silver activities,
transactions in foreign exchange, and the exercise of rights in property
subject to American jurisdiction in which foreign nationals have an
interest. Some of these matters are of current significance, and there-
fore, the bill as reported by the Committee contains the exception in
section 502(a)(1) concerning section 5(b) of the Act of October 6,
1917, the Trading With the Enemy Act. The Treasury Department also
referred to certain provisions of law concerning current practices in
the warehousing of merchandise in bonded warehouses. It noted that
American importers have been permitted to warehouse merchandise
in excess of the periods in excess of statutory periods fixed in sections
491, 557, and 559 of the Tariff Act of 1930 as the result of regulations
authorized in a Presidential Proclamation issued under the authority
of an emergency statute, section 318 of the Tariff Act of 1930 (19
U.S.C. 1318). The two year period fixed in the amended bill will make
it possible for the appropriate committees to consider matters like this
where authority originally provided in connection with an emergency
situation has come to be relied upon in normal Government procedure
and under current business practice.

Title 1 of the bill provides that after two years, all powers and
authorities possessed by the President or other officer or employee of
the Federal Government, based upon any declaration of national
emergency in effect on the date of enactment will be terminated. The
provisions of Title 1 terminating powers and authorities possessed _
by the Executive as the result of any prior declaration of national emer-
gency are a basic part of the bill. It is recognized that an immediate
termination without a period for transition in adjustment would undo

187

and confuse many dispositions which are necessary and functioning
parts of our Government, After study and consideration, the Congress
may or may not wish to change some of these practices and procedures
based upon the emergency statutes. The bill meets this problem in two
ways : First, a limited number of powers and authorities which have
been identified as necessary on a continuing basis are exempted from
termination by section 502 of the amended bill. Second, as discussed
above, the termination date for all other powers and authorities is set
at two years from date of enactment. This will also serve to give Gov-
ernment departments and agencies a period in which to identify and
bring to the attention of the Congress provisions which in their esti-
mation merit legislative consideration.

In reports of the earlier bills and in testimony before the Committee,
the Executive departments and agencies have indicated that they have
identified all of their operations which are dependent upon emergency
powers and authority for their continuing validity. In view of the num-
ber and the complexity of the statutes involved, there is a possibility
that several provisions may have been overlooked. The definite limit
fixed in the bill will require that the agencies take prompt action to
review their legislative authority and make prompt recommendations
to the Congress for any needed action. After the two year period the
Government agency should be freed from a dependence on emergencies
authority and Government operation will proceed on the basis of pro-
cedures under permanent law and under new enactments drafted to
meet current needs and operations.

Any emergency declared after the date of enactment of this legis-
lation would not be terminated by Title I, but would instead be gov-
erned bv the limiting scheme created by Title II. By definition. Title
I would affect those statutes whose conferral of powers is expressly
conditioned upon a Presidential declaration of national emergency.
This is provided in section 101(b), which defines "any national emer-
gency in effect" to mean only "a general declaration of emergencv made
by the President." Accordingly, laws like the Defense Production Act
of 1950, which do not require a Presidential declaration of emergency
for their use, are not affected bv this title — even though they may be
referred to in a general sense as "emergency" statutes.

Title II of the bill concerns the declaration of future national emer-
gencies. These provisions would require that in the future there shall
be an improved definition and classification of the nature and effect
of declarations of national emergencies. The provisions of this title of
the bill, together with those of Titles III and IV of the amended bill,
are included to insure that the Congress will exercise continuing and
effective oversight in connection with any future emergencies. Section
201 concerns Presidential proclamations of a national emergency and
authorizes such proclamations upon a finding that it is essential to the
preservation, protection and defense of the Constitution or to the com-
mon defense, safety or well-being of the territory or people of the
United States. This language of section 201 fa) is not intended to grant
any additional authority to the President. Rather it indicates the gen-
eral nature of the circumstances in which a declaration might be issued.
The proclamation would be immediatelv transmitted to the Congress
and published in the Federal Register. Subsection (b) limits the effec-
tiveness of provisions of law to be exercised during a national emer-

188

gency to periods when a President's declaration of national emer-
gency is in effect and then only in accordance with the balance of the
provisions of the bill. This latter provision has particular reference
to the provisions of section 301 which requires that the President spe-
cify the provisions of law he will utilize or under which other officers
of the (jovernment will act. Subsection (b) also contains a provision
stating that no subsequent enactment will supersede the title unless it
does so in specific terms declaring that the new law supersedes the pro-
visions of the title.

Section 202(a) provides for the termination of national emergencies
declared by the President in accordance with Title II of the bill. They
would be terminated by concurrent resolution of the Congress or by a
proclamation by the President. The subsection contains an additional
requirement that at the end of each year following the declaration of
an emergency which is still in effect, the President shall publish in
the Federal Register and transmit to the Congress a notice stating
that the emergency is still in effect. This title of the bill provides, for
the first time, explicit provision for the President to make the declara-
tion of national emergency which certain statutes require. While it
might be asserted that the Chief Executive has inherent constitutional
power to proclaim to the citizens his determination that there exists
a national emergency. Under this bill such a general proclamation
would not have the effect of /placing any new statutory powers in his
hands. This clarifies an existing problem as to emergency statutes. At
present this power can be implied with respect to some statutes — for
example, those which state that certain laws are deemed to be in effect
"during any * * * period of national emergency declared by the
President," in so many words, may declare such an emergency; and
some statutes dependent upon the existence of states of emergency do
not specifically say who shall declare them. The Committee has con-
cluded that the bill will clarify the law in this report. When the Act
fully takes effect, emergency provisions will only be implemented
by the President in accordance with the terms of Title II and Title III
of the amended bill. It should also be noted that when enacted into
law the provisions of the bill would not supersede existing provisions
of law which authorize Congressional declarations of emergency; its
focus is only on Presidential declarations.

In providing for the termination of emergency powers as well as
their commencement, the bill makes an important change in the law.
The absence of such statutory requirements and procedures in the past
has resulted in the failure to terminate emergency powers and this in
turn has given rise to the present situation. Under present law, which
does not contain explicit termination provisions, proposals for the use
of emergency power often generate discussion as to whether existing
emergencies have lapsed or grown stale due to (passage of time and
change of circumstances. Section 202 of the present bill will eliminate
all uncertainty on that point, since it sets forth the prescribed means
of termination and also requires the continuing existence of a state of
emergency to be formally recorded each year.

As has been stated, the bill provides two methods for termination : a
concurrent resolution by Congress, and a proclamation by the Presi-
dent. The second has been the traditional method for formally ending

189

emergencies. Presidents have terminated a number of separate emer-
gencies in the recent past. In 1952 President Truman terminated
emergencies declared by President Roosevelt in 1939 and 1941. x Recent
invocations of emergency power by the President have relied on two
emergency declarations: Proclamation No. 2914 of December 16, 1950,
and Proclamation No. 4074 of August 15, 1971. 2

Subsections (b) and (c) of Section 202 provide for procedures
which will govern the consideration of the Congress of a concurrent
resolution which would terminate a national emergency. These provi-
sions are very similar to those set forth in section 7 of Public Law
93-148, the War Powers Act, of November 7, 1973. Subsection (b)
provides that not later than six months after a national emergency is
declared, and then after each following six-month period during the
continuance of an emergency, each House of Congress shall meet to
consider a vote on a concurrent resolution to determine whether that
emergency shall be terminated. It is further provided that in either
House a concurrent resolution to terminate a national emergency de-
clared by the President shall be referred to the appropriate committee
and a resolution is to be reported out by such committee together with
its recommendations within fifteen calendar days, unless such House
shall otherwise determine by the yeas and nays. Upon being reported,
the concurrent resolution shall become the pending business of the
House in question and shall be voted on within three calendar days,
unless such House shall otherwise determine by yeas and nays. Upon
passage by one House, the concurrent resolution is to be referred to
the appropriate committee of the other House and it similarly would
be required to be reported out in fifteen calendar days. It would be-
come the pending business of that House and be voted upon within
three calendar days unless otherwise determined by that House by vote
of the yeas and nays.

In the event of disagreement between the two Houses on the concur-
rent resolution passed by both, the bill would require that conferees
be promptly appointed and their report filed within six days and the
House would be required to act within six calendar days thereafter.
Should the conferees disagree within forty-eight hours they are to
report back to their respective Houses in disagreement. These provi-
sions of subsection 202(c) are stated to be an exercise of the rulemak-
ing power of the House and Senate, and the constitutional power of
either House to change its rules is specifically recognized in the bill.

1 Proclamation No. 2974.

2 E.g., E.O. 11810 of September 30, 1974, Continuing the Regulation of Exports.

190

of national emergency. 3 Section 301 of the amended bill would change
this by establishing that no provision of law shall be triggered by a
declaration of national emergency unless and until the President
specifies that provision as one of those under which he or other officers
will act. The specification may be made either in the declaration of
national emergency or in subsequent Executive orders. This will enable
the Executive to choose specific provisions needed to deal with the
emergency at hand ; and it will put Congress and the public on notice
as to precisely what laws are going to be invoked.

Section 401 of the amended bill details the accountability and re-
porting requirements applicable to the President in connection with
national emergencies. All significant orders of the President shall be
filed and an index maintained of that file. Further, each Executive
agency is to maintain a file and an index of all rules and regulations
issued during an emergency of war. These orders, rules, and regula-
tions are to be transmitted to the Congress. Subsection (c) requires
that the President transmit to the Congress within ninety days of the
end of each six month period after declaration of a national emergency
or declaration of war a report of the total expenditures of the Govern-
ment attributable to the exercise of powers and authorities brought
into force by the declaration. A final report of all such expenditures is
required within ninety days of the termination of the war or the
emergency.

At the hearing on the bill, the Defense Department witness stated
that the thirty day period provided in the bill as originally introduced
might not be sufficient time to prepare a complete accounting of all
expenditures directly attributable to an emergency declaration. The
General Services Administration representative at those hearings sug-
gested that it may be more informative as well as less onerous to re-
quire a narrative description of how emergency powers have been
used, rather than a list of figures. The committee concluded that the
best practical solution would be to fix a ninety day period for such
reports at the end of each six month period. It would be assumed that
such reports would include explanations which would identify the
nature, powers and authority for the expenditures identified in this
manner.

Title V of the Amended Bill

Section 501 provides for the repeal of provisions of seven laws
which have been found to be superseded or obsolete, and section 502
for the continuation in effect of other provisions of law which have
been determined to be important to Governmental operation. The texts
of laws referred to in these two sections are set out in the appendixes I
and II of this report, and appendixes contain other relevant portions
jzi the statutes involved to give a more complete understanding of the
scope and purpose of the laws involved. The texts of laws or portions
of laws repealed or stricken as provided in section 501 are set out in
Appendix I, and the texts of laws continued in force under section
502 (a) of the amended bill are set out in Appendix II.

3 Examples are found in 37 U.S.C. 202(e) having to do with pay of certain rear admirals,
or in 37 U.S.C. 407(b) having to do with dislocation allowances for members of the uni-
formed services.

191

Provisions To Be Repealed

Subsection (a) of section 501 of the amended bill strikes paragraph
(1) of section 349 (a) of the Immigration Act (8 U.S.C. 1481 (a) ) . Sec-
tion 349 concerns loss of nationality by nationals of the United States,
and subsection (a) (10) provides that nationality shall be lost by per-
sons who depart from or remain outside the jurisdiction of the United
States during a war or national emergency for the purpose of evading
or avoiding training and service in the Armed Forces of the United
States. The Supreme Court in the case of Kennedy v. Mendoza Mar-
tinez, 372 U.S. 144 (1963) held section 349(a) (10) of the Immigra-
tion and Nationality Act to be unconstitutional because it employed
the sanction of deprivation of nationality as a punishment for the
offense of leaving or remaining outside the country to evade military
service without affording the procedural safeguards guaranteed by
the Fifth and Sixth Amendments. In this connection, the Court
pointed out that this punishment cannot be imposed without a criminal
trial with all its incidents and procedural safeguards including indict-
ment, notice confrontation, jury trial, assistance of counsel, and com-
pulsory process for obtaining witnesses. Since the subparagraph has
been held invalid, the bill provides that it be stricken from section
319 (a) of the Immigration and Nationality Act.

Subsection (b) of section 501 of the amended bill deletes Item 4 of
section 2667(b) of Title 10. Item 4 provides that leases of non-excess
property of a military department must contain a provision making
the lease revocable by the section during a national emergency declared
by the President. In the course of the hearings on the bill, the Commit-
tee was advised that the deletion of this provision would give the de-
partments concerned the option of either including or not including
such a requirement in their leases. The change would, therefore, make
it possible for the departments to determine whether the foreseeable
needs of the department would require the inclusion of such a pro-
vision.

Subparagraph (c) of section 501 repeals a joint resolution approved
August 8, 1947, concerned the regulation of consumer credit. This Act
ended consumer credit control under a war time executive order as of
November 1, 1947. The exception contained in the Act provided that
the authority could be exercised during war or national emergency
after the effective date of the act. The provisions of the act are obso-
lete. Section 1904 of Title 12 presently empowers the President to
authorize the Board of Governors of the Federal Reserve System to
regulate extensions of credit.

Subsection (d) of section 501 repeals section 5(m) of the Tennessee
Valley Authority Act of 1933 (16 U.S.C, 831d(m). Subsection (m^
bars the sale of products except ferrophosphorus outside the United
States and possessions except as to the United States Government for
military use or to its allies in the case of war or until six months after
the termination of the Korean emergency. The Committee has been
advised that the provisions of this subsection have no present applica-
tion.

Subsection (e) of spction 501 of the amended bill repeals section
1383 of Title 18 of the United States Code. This is a section which pro-

192

vides criminal penalties for "W n °ev er > contrary to the restrictions
applicable thereto, enters, remains in, leaves, or commits any act in
any military area or military zone prescribed under the authority of
an Executive Order of the President, by the Secretary of the Army . . ."
when it appears that the individual knew of the restrictions or order
and that his act was in violation thereof. This section was originally
enacted as a wartime measure on March 21, 1942. In the case of
Hirabayashi v. United States, 320 U.S. 81, 92 (1943), the Court held
that the Act ratified and confirmed Executive Order No. 9066, 7 Fed.
Reg. 1407, which was promulgated during time of war on, February
14, 1942, for the declared purpose of persecuting the war by protecting
national defense resources from sabotage and espionage. This was the
Executive Order which formed the basis for the relocation and deten-
tion of persons of Japanese ancestry in that period. This relationship
to the evacuation was even more- directly discussed in the case of
Ex Parte Mitsuge Endo 323 U.S. 283, 298 when it was pointed out that
Congress had made the orders regarding the evacuation program sub- *
ject to the civil penalties provided in the Act of March 21, 1942, the act
upon which the codified provisions of section 1383 of Title 18 are based.
Clearly, the Act was not intended to apply in normal peacetime situa-
tions. Further, by the Act of September 25, 1971, Public Law 92-128
repealed the provision of Title II of the Internal Security Act of 1950
(50 U.S.C. 811-826) the "Emergency Detention Act." the report of
the Committee which accompanied that legislation (H. Kept. 92-116,
92nd Congress, 1st Session) stated :

. . . the Committee is of the view that the Emergency
Detention Act serves no useful purpose, but, on the contrary,
only engenders fears and resentment on the part of many of
our fellow citizens . . .

The repeal of section 1383 of Title 18 is consistent with the previous
action of the Congress with reference to the above law. Since the pro-
visions of section 1383 of Titlejii have no current purpose, they are,
as a practical matter, obsolete.

Subsection (f) of section 501 strikes subsections (b), (c), (d), (e)
and (f ) of section 6 of the Act of February 28, 1948. An amendment to
the Public Health Service Act concerning promotion of commissioned
officers of the Public Health Service. The committee has been advised
that these provisions now are obsolete.

Subsection (g) of section 601 repeals section 9 of the 1946 Merchant
Ship Sales Act. 50 U.S.C. 1742. This section of the Sales Act concerns
price adjustment for prior sales to citizens of the United States. The
Committee has been advised that the section is now a nullity and no
future proclamation of a national emergency could provide any au-
thority under it. The letter from the Department of Commerce dated
April 1, 1975, discussing this point is set out at the end of this report.

Continuing Authority Provided for in the Bill

As has been discussed in this report, a basic problem with emergency
legislation derives from the fact that much which is authorized and
much which has been done under it is really not of merely an "emer-
gency" nature. Simply to abolish all emergency powers and disposi-

193

tions on a specified date would not actually solve this problem but
would ignore that in some instances this authority is vital to retain
governmental functions. The Committee has been advised that the
greatest part of the effort which the Executive and Legislative
branches have devoted to this bill and earlier bills in the past several
years has been directed toward identifying those powers and disposi-
tions which should be preserved while the rest are abandoned. As is
provided in section 502(b) , it is intended that within a short time those
provisions of law can be converted from the "emergency" portions of
the Code in which they now appear to standard, non-emergency sec-
tions. Until that is achieved, however, the technical conditions which
enable them to remain effective must be preserved. This is achieved in
section 502 of the amended bill, by preserving the effect of previously
issued declarations of national emergency only with respect to those
specified provisions. The texts of laws referred to in section 502(a) are
set forth in Appendix II of this report together with a brief explana-
tion of the provisions involved.

Section 502(a) of the amended bill provides that the provisions of
the Act will not apply to provisions of law and related powers, au-
thority, and actions thereunder which are listed in that section. Clause
1^ of the subsection lists section 5(b) of the Act_of J3ct. 6, 1917^ the
Trading With the Enemy Act. The provisions of 5(b) are presently
set out in the United States Code as section 95a of Title 12 and section
5(b) of Title 50. This section concerns the regulation of transactions
in foreign exchange of gold and silver, property transfers in which
any foreign country or national thereof has an interest and provides
for the administration of such assets or property. At the hearings on
the bill and in departmental reports made to the Committee, the im-
portance of this section as a continuing measure was emphasized. The
Treasury Department pointed out that this law is important to the
United States with regard to existing controls which regulate trans-
actions with several foreign countries and their nationals. It is also
important to the continuing validity of certain blockings of assets of
foreign countries which are presently in effect. The StateDepartment
witness before the Committee indicated that the Department of State
is concerned with the continuance of this section because it provides
the basic legal authority for a number of programs of major foreign
policy importance.

Clause 2 of section 602(a) of the bill as originally introduced would
have continued in effect the provisions of section 673 of Title 10,
which concerns the call up of members of the Ready Reserve. Since
this section by its express terms could be invoked by any future emer-
gency or where otherwise authorized by law, there would be no require-
ment of its continuance under the provisions of this section. Acco rd-
ingly, the Committee has recommended that it be stricken and the
number of the clauses in the bill be adjusted accordingly. The 'balance
of the discussion will relate to the numbers of the clauses as are con-
tained in the amended bill in renumbered section 502(a).

Clause 2 of 502(a) of the amended bill continues in effect the pro-
visions of the Act of April 28, 1942, which is contained in the United
States Code as section 278(b) of Title 40. This Act provides for an
exception to the existing provisions of law concerning maximum rental
of leases in cases relating to vital leases during a war or national

194

' emergency ._ At the hearings on the bill, the witness represen ting the
General Services Administration that the continuing availability of
the national emergency authority contained in this section has been
found to be essential to the regular functioning of the Government and
pointed out that this type of authority had proven to be of value where
situations arose where the normal limitations on expenditures for
rentals alterations and improvements had to be waived in the national
interest. The Department further indicated that it would favor the
enactment of permanent legislation granting similar alternative
authority.

Clause 3 continues in effect the provisions of the Act of June 30,
1949 presently found in section 252 of Title 41 of the United States
Code. This Act provides for authority to make purchases and to make
contracts for property and services. Subsection (c) (1) contains an
exception to a requirement of advertising such purchases or contracts
where it is determined in the public interest during a period of na-
tional emergency declared by the Pre siden t or by the Congress. The
General Services Administration has advised the Committee that this
emergency authority is presently relied upon for the award of contracts
involving unilateral set asides for small business concerns. The Com-
mittee was also advised that this authority is also relied upon for
partial set asides of contracts intended for labor surplus areas. It has
also been used to limit certain contracts of domestic end products in
the interest of improving the United States balance of payments.
Presently, there is no other negotiation authority available. If this
authority were terminated, awards for these purposes would have to be
discontinued. For these reasons, this section has been listed among
those provisions of law to be given continuing effect.

Clauses 4 and 5 of section 502(a) of the amended bill continue the
authority contained in two sections of the revised statutes concerning
the assignment of claims. Clause 4 lists section 3477 of the revised
statutes which is set out in the Code as section 203 of Title 31. This
section refers to the assignment of claims upon the United States and
continues a provision that in time of war or national emergency, con-
tracts may contain a provision that assignment of money due under a
contract may not be subject to reduction or setoff for liability of the
assignor as specified in the section. Clause 5 continues in effect the
provisions of section 3737 of the revised statutes which is set out as
Section 15 of Title 41 of the Code. This section also has to do with
the assignment of claims and setoffs against the assignee and contains
language similar to that found in the section referred to in Clause 4.

During the hearings, the General Services Administration witness
referred to these provisions and stated that they permit claims for
money due or to become due a contractor with the Government to be
assigned to a bank, trust company or other financial institution. This
has proven to be important in the financing of Government contracts
but its usefulness may be impaired if the assignments are deemed to
be subject to reductions or set off by the Government. As has been
noted, under emergency authority, it is possible to provide that such
assignments will not be subject to such setoffs. The continuance of this
authority will make it possible for the appropriate committees to con-
sider whether similar authority should be provided or modified by new
legislation.

195

Clause 6 of section 502(a) of the amended bill continues the author-
ity provided in Public Law 85-804 as enacted on August 28, 1958. (50
U.S.C. 1431-1435.) This law permits departments or agencies exercis-
ing functions in connection with the national defense to deal with
unusual contract situations. This permits the correction of mistakes in
contracts, the formalization of informal commitments by the Govern-
ment, and the indemnification of contractors for unusually hazardous
risks and other extraordinary contractual relief. At the hearings on the
bill, it was pointed out that the Commission on Government Procure-
ment recommended to the Congress in 1972 that the authority in
Public Law 85-804 be made available under permanent and generally
applicable law rather than being dependent upon the existence of a
state of war or national emergencies. On page 9 of Vol. 4 of the Report
of that Commission, the Commission summarized its recommendations
in connection with this Public Law and indicated that it concluded
that the authority should be extended to all executive agencies subject
to the statutory controls now contained in the Act and to controls and
criteria specified in the regulations established by the President. The
report of the Commission in chapter 4 discussed in some detail the
subject of equitable and special management powers under Public Law
85-804. The continuance of the authority as provided in this section of
the bill will permit the appropriate committees of Congress to consider
this aspect of the recommendations of the Procurement Commission.

Item 7 continues the authority provided in section 2304(a)(1) of
Title 10 providing for an exception to the requirement for formal
advertising in connection with certain contracts. This is identical
language presently contained in the Armed Services Procurement Act
to that contained in Clause 1 of subsection (c) of section 302 of the
Act of June 30, 1949, which is also listed in this subsection of the bill
in Clause 3. The testimony at the hearing was that this authority is
important in that it is used to provide for contracts for small busi-
nesses and to place contracts for labor surplus areas and disaster areas.

Item 8 extends the emergency authority provided in sections 3313,
038(5 (c) and 8313 of Title 10, which provide authority for the suspen-
sion of provisions of law requiring mandatorv retirement or separation
of officers. In reports to the Committee and testimony in connection
with this bill, the Committee was advised that this authority makes it
possible to suspend such requirements as they relate to some C>90 mem-
bers of the Armed Forces missing in action in Southeast Asia. The
emergency authority permits the Armed Services to retain them in the
Armed Services until they are returned or are accounted for.

Committee Vote

On May 21, 1975, the Full Committee on the Judiciary approved the
bill H.R. 3884 by voice vote.

Cost

(Rule XIII (7) (a) (1) of the House Rules)

The bill does not provide for any specific new programs. As has been
outlined in the report, after a transition period of two years it would
terminate all powers and authorities under existing emergencies, and
then also define procedures and restrictions which would apply in the

196

=-©ve»t of 4fte declaration of future emergencies. Thus the bill contem-
plates governmental operations under regular law except as is other-
wise provided in the bill relating to emergency statutes. Under these
circumstances it is not possible to predict what future cost impact the
provisions of this bill would have on the Government.

Conclusion

The Committee has concluded that the facts developed in the hear-
ings on the bill and as outlined in this report demonstrate the need for
legislative action. The testimony by representatives of departments in
connection with this subject, and the reports received from those de-
partments have shown that there is general agreement that the time
has come for positive and constructive legislative action in the manner
provided for in this bill. It is recommended that the amended bill be
considered favorably.

Analysis of the Bill

title i — termination of existing emergencies

Sec. 101 terminates powers and authorities under existing emer-
gencies. Tne subcommittee amendment provides a two year delay in
effective date in lieu of the one year date originally stated in the bill.
The Congress would have this period to enact permanent law where
needed. The section defines "any national emergency in effect" as one
declared by the President. The committee amendment would strike the
words "pursuant to a statute authorizing him to declare a national
emergency". Apparently, not all previous emergencies were declared
pursuant to a specific statute.

TITLE II — FUTURE NATIONAL EMERGENCIES

Sec. 201 authorizes the President to proclaim a national emergency
and requires the proclamation to be^ transmitted to the Congress and
published in the Federal Register. Powers and authorities to be exer-
cised under the emergency are to be effective only when the President
declares such an emergency and only in accordance with the provisions
of this bill.

Sec. 202 provides for termination of such emergencies either by the
Congress by concurrent resolution or by Presidential proclamation.
This section spells out in some detail the procedures to be followed by
the Congress to consider such concurrent resolutions. The resolutions
would be considered at six month intervals. These procedures of the
section are to be deemed a part of the rules of each House.

TITLE in — DECLARATIONS OF WAR

The single section 301 contained in this title of the bill as originally
introduced would provide that when Congress declares war, provisions
of law providing for the exercise of powers and authorities in time of
war are to be^effective from the datejof that declaration. The subcom-
mittee amendment is to strike Title III and renumber subsequent titles

197

and sections. It was concluded that the language of the title was un-
necessary.

TITLE IV — EXERCISE OF EMERGENCY POWERS

Title IV is re-numbered as Title III, and Sec. 401 becomes Sec. 301.
This section provides that upon the declaration of the national emer-
gency, the President will be required to specify which emergency
statutes are to be utilized.

TITLE V AMENDED TITLE (IV) ACCOUNTABILITY AND REPORTING

Sec 501 (401) When the President declares a national emergency
or the Congress declares war, the President shall maintain a file and
index of all Presidential orders and each Executive agency shall main-
tain a file of all rules and regulations issued during the emergency or
war. These orders, rules and regulations are to be transmitted to the
Congress. The section requires that after the declaration of a national
emergency or declaration of war, the President shall transmit to the
Congress 90 days after each six month period a report of total ex-
penditures which are attributable to powers and authorities exercised
under such declarations. A final report is required 90 days after the
termination of the emergency or war.

TITLE VI (TITLE V) REPEALS AND CONTINUATION OF STATUTES

[repeals J'

Sec. 601 (501) repeals the following statutes :

1. Paragraph 10 of section 349(a) of the Immigration and Nation-
ality Act providing for the expatriation of persons remaining outside
the jurisdiction of the United States in time of war or national emer-
gency to avoid service in the militarv.

~ 2. Clause 4 of section 2667(b) of Title 10 of the United States Code
requiring that leases of non-excess property of a military department
must include a provision making the lease revocable during a national
emergency.

3. A joint resolution approved August 8, 1947, concerning the regu-
lation of consumer credit which contains an exception that the author-
ities concerning such regulation could be exercised during war or na-
tional emergency.

4. Subsection (m) of Section 5 of the Tennessee Valley Authority
Act of 1933 which bars the sale of Tennessee Valley Authority products
outside of the United States except to the Government for military use
or its allies in case of war or until six months after the termination of
the Korean emergency.

5. Section 1383 of Title 18 providing criminal penalties for persons
entering, remaining in, leaving or committing any act in a military
area or military zone.

6. Subsections (b). (c), (d). (e). and (f) of Section 6 of the Act of
February 28, 1948, an amendment to the Public Health Service Act
concerning the promotion of Public Health Service officers, now
deemed obsolete.

198

. 16

[continuation]

Section 602 (502) provides that the provisions of the Act will not
apply to listed provisions of law and related powers and authorities
and actions thereunder, as follows :

1. Section 5(b) of the Act of October 6, 1917, the Trading With the
Enemy Act. The section concerns the regulation of transactions in for-
eign exchange in gold and silver, property transfers in which any for-
eign country or national thereof has an interest and provides for the
liquidation of assets or property.

2. The bill would have continued the effect of the j) revisions of sec-
tion 673 of Title 10 concerning the call-up of the Ready Reserve. The
subcommittee amendment is to strike this and to re-number the balance
of the clauses in the subsection.

3. (Clause 2) continues in effect the provisions of the Act of October
28, 1942, making an exception to existing provisions of law fixing max-
imum rental in leases deemed vital during a war or national emer-
gency.

4. (Clause 3) The provisions of the Act of June 30, 1949, providing
authority to make purchases and make contracts for property and
services with an exception for the requirement for advertising and
provision for negotiated contracts where it is determined in the pub-
lic interest during a period of national emergency declared by the
President or by the Congress. This is the present authority for set-
asides for small business and for contracts in labor surplus areas. It
also has been utilized to limit certain contracts to domestic end prod-
ucts to improve balance of payments.

5. (Clause 4) The provisions of section 3477 of the Revised Statutes
concerning the assignment of claims during war or national emer-
gency. Contracts may contain a provision that assignments of claims
will not be subject to set-off for assignor liability. This section is im-
portant in obtaining bank financing.

6. (Clause 5) The provisions of section 3737 of the Revised Statutes.
This section also has to do with the assignment of claims and set-offs
for assignor liability and contains language similar to that found in
the foregoing section.

(The subcommittee amendment adds three references.)

6. New Clause 6 continues in effect the provisions of Public Law
85-804 permitting departments or agencies exercising functions in
connection with the national defense to deal with unusual contract
situations subject to standard regulations. This includes correction of
mistakes in contracts, formalization of informal commitments, indem-
nification of contractors for unusually hazardous risks and other
extraordinary relief.

7. New Clause 7 would continue in effect the provisions of section
2304(a) (1) of Title 10 which is a parallel provision to that referred
to in this section in original clause 4. It is similarly used to provide for
contracts for small business and to place contracts in labor surplus
areas and disaster areas.

8. New Clause 8 continues in effect the provisions of sections 3313,
6386(c) and 8313 of Title 10, making exceptions to the mandatory
separation or retirement of officers during an emergency. These sec-
tions may have application to approximately 691 officers now listed as
missing in action.

199

Statement Under Clause 2(1) (3), and Clause 2(1) (4) of
Rule XI of the Rules of the House of Representatives

Oversight Statement

This report embodies the findings and recommendations of the
Subcommittee on Administrative Law and Governmental Relations
pursuant to its oversight responsibility over national emergencies and
procedures relating thereto under Rule VI (b) of the Rules of the
Committee on the Judiciary, and the committee determined that
legislation should be enacted as set forth in the amended bill.

Budget Statement

Clause 2(1) (3) (B) of Rule XI is not yet applicable because as is
stated in the report of the Committee on the Budget (House Report No.
04—25, 94th Cong., 1st Sess.) section 308(a) of the Congressional
Budget Act of 1974 will not be implemented during the current session.

Estimate of the Congressional Budget Office

No estimate or comparison was received from the Director of the
Congressional Budget Office as referred to in subdivision (C) of
Clause 2(1) (3) of House Rule XL

Oversight Findings and Recommendations of the Committee on
Government Operations

Xo findings or recommendations of the Committee on Government
Operations were received as referred to in subdivision (D) of clause
2(1) (3) of House Rule XL

Inflationary Impact

In compliance with clause 2(1) (4) of House Rule XI it is stated
that this legislation will have no inflationary impact on prices and
costs in the operation of the national economy. The bill provides for
termination of Governmental dependence upon emergency statutes
and for procedures to be followed in the event of future emergencies.
It does not provide for any new programs.

Text of Statute To Be Repealed

In compliance with paragraph 1 of clause 3 of rule XIII of the
Rules of the House of Representatives, the text of the statute which is
proposed to be repealed by the bill is shown as follows :

66-474 O - 76 - 14

200

Paragraph (10) of section. 349(a) of the Immigration and Nation-
ality Act (Act of June 27, 1952, ch. 477, 66 Stat. 163; 8 U.S.C. 1481
(10)) * * * ;or

(10) departing from or remaining outside of the jurisdiction of the
United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and service in the military, air, or naval
forces of the United States. For the purposes of this paragraph fail-
ure to comply with any provision of any compulsory service laws of
the United States shall raise the presumption that the departure from
or absence from the United States was for the purpose of evading
or avoiding training and service in the military, air, or naval forces
of the United States.

Paragraph (4) of section 2667 (b) of title 10, United States Code
*******

(4) mu9t be revocable by the Secretary during a national emergency
declared by the President ; and

* * *****

The Joint Resolution approved August 8, 1947 entitled "Joint Reso-
lution to authorize the temporary continuation of regulation of con-
sumer credit" (Act of Aug. 8, 1947, ch. 517, 61 Stat. 921 ; 12 U.S.C.
249).

JOINT RESOLUTION To authorize the temporary continuation of regulation

of consumer credit

Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That after November 1,
1947, the Board of Governors of the Federal Reserve System shall not
exercise consumer credit controls pursuant to Executive Order Num-
bered 8843, and no such consumer credit controls shall be exercised
after such date except during the time of war beginning after the date
of enactment of this joint resolution or any national emergency de-
clared by the President after the date of enactment of this joint
resolution.

Section 5(m) of the Tennessee Valley Authority Act of 1933, as
amended (Act of May 18, 1933, ch. 32, § 5m, 48 Stat. 61, as amended;
16 U.S.C. 831d(m))

(m) No products of the Corporation except ferrophosphorus shall
be sold for use outside of the United States, its Territories and posses-
sions, except to the United States Government for the use of its Army
and Navy, or to its allies in case of war or, until six months after the
termination of the national emergency proclaimed by the President
on December 16, 1950, or until such earlier date or dates as the Congress
by concurrent resolution or the President may provide but in no event
after April 1, 1953, to nations associated with the United States in
defense activities.

Section 1383 of Title 18, United States Code.

§ 1383. Restrictions in military areas and zones.

201

President, by the Secretary of the Army, or by any military com-
mander designated by the Secretary of the Army, shall, if it appears
that he knew or should have known of the existence and extent of the
restrictions or order and that his act was in violation thereof, be fined
not more than $5,000 or imprisoned not more than one year, or both.
Subsections (b), (c), (d), (e), and (f) of Section 6 of the Act
entitled "An Act to amend the Public Health Service Act in regard to
certain matters of personnel and administraiton and for other pur-
poses", (Act of February 28, 1948, ch. 83, 62 Stat. 45 ; 42 U.S.C. 211b)
****** *

(b) Except as provided in subsection (d) of this section, no promo-
tion shall be made under section 210 of the Public Health Service Act,
as amended by this Act, prior to July 1, 1948. Until that date officers
of the Regular Corps may receive temporary promotions to higher
grades with the pay and allowances thereof pursuant to section 210

(a) (1) of the Public Health Service Act, in force prior to the enact-
ment of this Act, notwithstanding the termination, prior to such date,
of the war and of the national emergencies proclaimed by the Presi-
dent. Any officer holding, on June 30, 1948, an appointment pursuant
to such section to a higher temporary grade shall continue in such
grade until such appointment is terminated, as the President may
direct.

(c) Effective as of the date enactment of this Act, each officer of
the Regular Corps on such date, in addition to the credit he has under
preexisting legislation for purposes of promotion, shall be credited
with three years of service.

(d) (1) Officers of the Regular Corps who have, or who on or before
July 1, 1948, will have, the years of service prescribed in pargraph (2)
of section 210(d) of the Public Health Service Act, as amended by
this Act, for promotion to the senior assistant, full, or senior grade,
shall be recommended to the President for such promotion, to be
effective as of July 1, 1948, whether or not vacancies exist in such grade.
Such promotions shall be made without examination, except that no
promotions shall be made to the senior grade or any grade immediately
below a restricted grade until the officer is found qualified for promo-
tion pursuant to subsection (c) of section 210 of the Public Health
Service Act, as amended by this Act. No promotion shall be made
pursuant to this paragraph to any grade in any professional category
if such grade has been made a restricted grade pursuant to subsection

(b) of section 210 of the Public Health Service Act, as amended by
this Act. For purposes of seniority, an officer promoted under this
paragraph shall be credited with the years of service in the grade to
which promoted equal to the excess of his years of service on the date
of promotion over the years of service required for promotion to such
grade under paragraph (2) of section 210(d) of the Public Health
Service Act, as amended by this Act.

(2) Officers in the junior assistant grade in the Regular Corps who
have, or who on or before July 1, 1948, will have four or more vears of
service in the junior assistant grade, shall be recommended to the
President for promotion to the assistant grade, to be effective as of
July 1, 1948, without examination and whether or not vacancies exist
in such grade. For purposes of promotion and seniority in grade, an

202

officer promoted under this paragraph shall be credited with the years
of service- equal to the excess of his years of service on the date of
promotion over four years.

(e) For purposes of seniority, any officer of the Regular Corps of
the Public Health Service on the date of enactment of this -Act shall be
considered as having had service in the grade which he holds on such
date equal to the excess of the service credited to him for promotion
purposes over the length of service required under section 210(d) (2).
as amended by this Act, for promotion to such grade.

(f) Except as provided in subsection (d) of this section, the pro-
visions of this section shall not, prior to July 1, 1948, affect the term
or tenure of office (including any office held under temporary promo-
tion) of any commissioned officer of the Service in office upon the date
of the enactment of this Act.

Section 9 of the Merchant Marine Sales Act of 1946 (Act of Mar.
8, 1946, ch. 82, 60 Stat. 45; 50 App. U.S.C. 1741).

ADJUSTMENT FOR PRIOR SALES TO CITIZENS

Sec. 9. (a) A citizen of the United Stares who on the date of the
enactment of this Act —

(1) owns a vessel which he purchased from the Commission
prior to such date, and which was delivered bv its builder after
December 31, 1940; or

(2) is party to a contract with the Commission to purchase
from the Commission a vessel, which has not yet been delivered
to him; or

(3) owns a vessel on account of which a construction-differential
subsidy was paid, or agreed to be paid, by the Commission under
section 504 of the Merchant Marine Act, 1936, as amended, and
which was delivered by its builder after December 31, 1940 : or

(4) is party to a contract with a shipbuilder for the construction
for him of a vessel, which has not yet been delivered to him, and
on account of which a construction-differential subsidy was
agreed, prior to such date, to be paid by the Commission under
section 504 of the Merchant Marine Act, 1936, as amended :

shall, except as hereinafter provided, be entitled to an adjustment in
the price of such vessel under this section if he makes application
therefor, in such form and manner as the Commission may prescribe,
within sixty days after the date of publication of the applicable prewar
domestic costs in the Federal Register under section 3(c) of this Act.
Xo adjustment shall be made under this section in respect of any vessel
the contract for the construction of which was made after September
2. 1945. under the provisions of title V (including section 504) or title
VII of the Merchant Marine Act, 1936, as amended.

(b) Such adjustment shall be made, as hereinafter provided, by
treating the vessel as if it were being sold to the applicant on the
date of the enactment of this Act, and not before that time. The
amount of such adjustment shall be determined as follows:

203

than 25 per centum of the statutory sales price of the vessel, the
applicant shall pay the difference to the Commission.

(2) The applicant's indebtedness under any mortgage to the
United States with respect to the vessel shall be adjusted.

(3) The adjusted mortgage indebtedness shall be in an amount
equal to the excess of the statutory sales price of the vessel as of the
date of the enactment of this Act over the sum of the cash payment
retained bv the United States under paragraph (1) plus the read-
justed trade-in allowance (determined under paragraph (7)) with
respect to any vessel exchanged by the applicant on the original
purchase. The adjusted mortgage indebtedness shall be payable
in equal annual installments thereafter during the remaining life
of such mortgage with interest on the portion of the statutory sales
price remaining unpaid at the rate of 3% per centum per annum.

(4) The Commission shall credit the applicant with the excess,
if any. of the sum of the cash payments made by the applicant
upon the original purchase price of the vessel plus the readjusted
trade-in allowance (determined under paragraph (7) ) over the
statutory sales price of the vessel as of the date of the enactment
of this Act to the extent not credited under paragraph (1).

(5) The Commission shall also credit the applicant with an
amount equal to interest at the rate of 3V 2 per centum per annum
(for the period beginning with the date of the original delivery
of the vessel to the applicant and ending with the date of the
enactment of this Act) on the excess of the original purchase price
of the vessel over the amount of any allowance allowed by the
Commission on the exchange of any vessel on such purchase : the
amount of such credit first being reduced by any interest on the
original mortgage indebtedness accrued up to such date of enact-
ment and unpaid. Interest so accrued and unpaid shall be canceled.

(6) The applicant shall credit the Commission with all amounts
paid by the United States to him as charter hire for use of the
vessel (exclusive of service, if any. required under the terms of
the charter) under any charter party made prior to the date of
the enactment of this Act. and any charter hire for such use accrued
up to such date of enactment and unpaid shall be canceled : and
the Commission shall credit the applicant with the amount that
would have been paid by the United States to the applicant as
charter hire bare-boat use of vessels exchanged by the applicant
on the original purchase (for the period beginning with date on
which the vessels so exchanged were delivered to the Commission
and ending with the date of the enactment of this Act) .

(7) The allowance made to the applicant on any vessel
exchanged by him on the original purchase shall be readjusted so as
to limit such allowance to the amount provided for under section 8.

204

making such subtractions, the sum of the credits in favor of the
applicant exceeds the sum of the credits in favor of the Commis-
sion, such excess shall be paid by the Commission to the applicant.
If, after making such subtractions, the sum of the credits in favor
of the Commission exceeds the sum of the credits in favor of the
applicant, such excess shall be paid by the applicant to the Com-
mission. Upon such payment by the Commission or the applicant,
such overpayments shall be treated as having been refunded and
such deficiencies as having been paid.
For the purposes of this subsection, the purchase price of a vessel on
account of which a construction-differential subsidy was paid or agreed
to be paid under sect-ion 504 of the Merchant Marine Act, 1936, as
amended, shall be the net cost of the vessel to the owner.

(c) An adjustment shall be made under this section only if the appli-
cant enters into an agreement with the Commission binding upon the
citizen applicant and any affiliated interest to the effect that —

(1) depreciation and amortization allowed or allowable with
respect to the vessel up to the date of enactment of this Act for
Federal tax purposes shall be treated as not having been allow-
able; amounts credited to the Commission under subsection (b)
(6) shall be treated for Federal tax purposes as not having been
received or accrued as income ; amounts credited to the applicant
under subsection (b) (5) and (6) shall be treated for Federal
tax purposes as having been received and accrued as income in
the taxable year in which falls the date of the enactment of this
Act;

(2) the liability of the United States for use (exclusive of serv-
ice, if any, required under the terms of the charter) of the vessel
on or after the date of the enactment of this Act under any charter
party shall not exceed 15 per centum per annum of the statutory
sales price of the vessel as of such date of enactment; and the
liability of the United States under any such charter party for
loss of the vessel shall be determined on the basis of the statutory
sales price as of the date of the enactment of this Act, depreciated
to the date of loss at the rate of 5 per centum per annum ; and

(3) in the event the United States, prior to the termination of
the existing national emergency declared by the President on
May 27, 1941, uses such vessel pursuant to a taking, or pursuant
to a bare-boat charter made, on or after the date of the enactment
of this Act, the compensation to be paid to the purchaser, his
receivers, and trustees, shall in no event be greater than 15 per
centum per annum of the statutory sales price as of such date.

(d) Section 506 of the Merchant Marine Act, 1936, as amended,
shall not apply with respect to (1) any vessel which is eligible for
an adjustment under this section, or (2) any vessel described in clause
(1), (2), (3), or (4) of subsection (a) of this section, the contract for
the construction of which is made after September 2, 1945, and prior
to the date of enactment of this Act.

Changes in Existing Law

In compliance with paragraph 2 of clause 3 of rule XIII of the
Rules of the House of Representatives, changes in existing law made

205

by the bill are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman) :

Section 349(a) of the Immigration and Nationality Act (Act of
June 27, 1952. ch. 477, 66 Stat. 163 ; 8 U.S.C. 1481. -

*******

Chapter 3 — Loss of Nationality

LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN

Sec. 349. (a) From and after the effective date of this Act a person
who is a national of the United States whether by birth or naturaliza-
tion, shall lose his nationality by —

(1) obtaining naturalization in a foreign state upon his own
application, upon an application filed in has behalf by a parent,
guardian, or duly authorized agent, or through the naturalization
of a parent having legal custody of such person : Provided, That
nationality shall not be lost by any person under this section as
the result of the naturalization of a parent or parents while such
person is under the age of twenty-one years, or as the result of a
naturalization obtained on behalf of a person under twenty-one
years of age by a parent, guardian, or duly authorized agent,
unless such person shall fail to enter the United States to establish
a permanent residence prior to his twenty-fifth birthday : And
provided further, That a person who shall have lost nationality
prior to January 1, 1948, through the naturalization in a foreign
state of a parent or parents, may, within one year from the
effective date of this Act, apply for a visa and for admission to
the United States as a nonquota immigrant under the provisions
of section 101(a) (27) (E) ; or

(2) taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state or a political subdivi-
sion thereof ; or

(3) entering, or serving in, the armed forces of -a foreign state
unless, prior to such entry or service, such entry or service is spe-
cifically authorized in writing by the Secretary of State and the
Secretary of Defense : Provided, That the entry into such service
by a person prior to the attainment of his eighteenth birthday shall
serve to expatriate such person only if there exists an option to
secure a release from such service and such person fails to exercise
such option at the attainment of his eighteenth birthday ; or

(4) (A) accepting, serving in, or performing the duties of any
office, post, or employment under the government of a foreign state
or a political subdivision thereof, if he has or acquires the nation-
ality of such foreign state; or (B) accepting, serving in, or per-
forming the duties of any office, post, or employment under the
government of a foreign state or a political subdivision thereof,
for which office, post, Or employment an oath, affirmation, or declara-
tion of allegiance is required ; or

(5) voting in a political election in a foreign state or participating
in an election or plebiscite to determine the sovereignty over foreign
territory ; or

206

(6) making a formal renunciation of nationality before a diplo-
matic or consular officer of the United States in a foreign state, in
such form as may be prescribed by the Secretary of State ; or

(7) making in the United States a formal written renunciation of
nationality in such form as may be prescribed by, and before such
officer as may be designated by, the Attorney General, whenever
the United States shall be in a state of war and the Attorney General
shall approve such renunciation as not contrary to the interests of
national defense ; or

(8) deserting the military, air, or naval forces of the United
States in time of war, if and when he is convicted thereof by court
martial and as the result of such conviction is dismissed or dis-
honorably discharged from the service of such military, air, or naval
forces : Provided, That, notwithstanding loss of nationality or citizen-
ship under the terms of this or previous laws by reason of desertion
committed in time of war, restoration to active duty with such mili-
tary, air, or naval forces in time of war or the reenlistment or induc-
tion of such a person in time of war with permission of competent
military, air, or naval authority shall be deemed to have the immediate
effect of restoring such nationality or citizenship heretofore or here-
after so lost ; or

(9) committing any act of treason against, or attempting by force
to overthrow, or bearing arms against, the United States, violating
or conspiring to violate any of the provisions of section 2383 of Title
18, or willfully perfofrhiTTg any act in violation of section 2385 of Title
18, or violating section 2384 of Title 18 by engaging in a conspiracy
to overthrow, put down, or to destroy by force the Government of the
United States, or to levy war against them, if and when he is convicted
thereof by a court martial or by a court of competent jurisdiction
[;orJ

[(10) departing from or remaining outside of the jurisdiction of
the United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and service in the military, air, or naval
forces of the United States. For the purposes of this paragraph failure
to comply with any provision of any compulsory service laws of the
United States shall raise the presumption that the departure from or
absence from the United States was for the purpose of evading or
avoiding training and service in the military, air, or naval forces of
the United States.]

Section 2667 (b) of Title 10, United States Code.

§ 2667. Leases : non-excess property

• * * * * * *

(b) A lease under subsection (a) — * * * *

(3) must permit the Secretary to revoke the lease at any time, unless
he determines that the omission of such a provision will promote the
national defense or be in the public interest ; and

[(4) must be revocable by the Secretary during a national emergency
declared by the President ; and]

[(5)1(4) ma y provide, notwithstanding section 303b of Title 40 or
any other provision of law, for the maintenance, protection, repair, or
restoration, by the lessee, of the property leased, or of the entire unit

207

or installation where a substantial part of it is leased, as part or all of
the consideration for the lease.

*******
Section 6 of the Act entitled "An Act to amend the Public Health
Service Act- in regard -to.ee rtain matters of personnel and administra-
tion and for other purposes", (Act of Feb. 28, 1948 ch. 83, 62 Stat. 45 :
42U.S.C.211b)

Sec. 6. (a) Section 210 of such Act is amended to read :
*******

[(b) Except as provided in subsection (d) of this section, no promo-
tion shall be made under section 210 of the Public Health Service Act,
as amended by this Act, prior to July 1, 1948. Until that date officers
of the Regular Corps may receive temporary promotions to higher
grades with the pay and allowances thereof pursuant to section 210

[(c) Effective as of the date o^ the enactment of this Act, each
officer of the Regular Corps on such date, in addition to the credit he
has under preexisting legislation for purposes of promotion, shall be
credited with three years of service.]

[(d) (1) Officers of the Regular Corps who have, or who on or before
July 1. 1948, will have, the years of service prescribed in paragraph (2)
of section 210(d) of the Public Health Service Act, as amended by
this Act, for promotion to the senior assistant, full, or senior grade,
shall be recommended to the President for such promotion, to be effec-
tive as of July 1, 1948, whether or not vacancies exist in such srrade.
Such promotions shall be made without examination, except that no
promotions shall be made to the senior grade or any grade immediately
below a restricted grade until the officer is found qualified for promo-
tion pursuant to subsection (c) of section 210 of the Public Health
Service Act, as amended by this Act. No promotion shall be made
pursuant to this paragraph to any grade in any professional category
if such grade has been made a restricted grade pursuant to subsection

(b) of section 210 of the Public Health Service Act, as amended by
this Act. For purposes of seniority, an officer promoted under this
paragraph shall be credited with the years of service in the grade to
which promoted equal to the excess of his years of service on the date
of promotion over the vears of service required for promotion to such
grade under paragraph (2) of section 210(d) of the Public Health
Service Act, as amended by this Act.

(2) Officers in the junior assistant grade in the Regular Corps who
have, or who on or before July 1, 1948, will have four or more vears of
service in the junior assistant grade, shall be recommended to the
President for promotion to the assistant grade, to be effective as of
July 1, 1948. without examination and whether or not vacancies esdst
in such grade. For purposes of promotion and seniority in grade, an
officer promoted under this paragraph shall be credited with the years

208

of service equal to the excess of his years of service on the date of
promotion over four years.]

[(e) For purposes of seniority, any officer of the Regular Corps of
the Public Health Service on the date of enactment of this Act shall be
considered as having had service in the grade which he holds on such
date equal to the excess of the service credited to him for promotion
purposes over the length of service required under section 210(d) (2) ,
as amended by this Act, for promotion to such grade. J

[(f) Except as provided in subsection (d) of this section, the pro-
visions of this section shall not, prior to July 1, 1948, affect the term
or tenure of office (including any office held under temporary promo-
tion) of any commissioned officer of the Service in office upon the date
of the enactment of this Act.]

Comments of Executive Departments and Agencies

Executive Office of the President,

Office of Management and Budget,

Washington, D.C., December 12, 197 4.
Hon. Peter W. Rodino, Jr.,

Chairman, Committee on the Judiciary, House of Representatives,
Washington, D.C.

Dear Mr. Chairman : This is in reply to your letter of October IT,
1974 to me requesting an expression of my views concerning S. 3957,
entitled "To terminate certain authorities with respect to national
emergencies still in effect, and to provide for orderly implementation
and termination of future national emergencies." It also responds to
a similar letter of September 27, 1974, concerning H.R. 16668 and H.R.
16743, two related bills.

S. 3957 was introduced in the Senate as a result of the studies con-
ducted by the Senate Select Committee on National Emergencies and
Delegated Emergency Powers. It was reported by the Chairman of the
Senate Committee on Government Operations, without amendment
and without hearings.

Subsequently, representatives of this Office, the Department of Jus-
tice, and other agencies of the Executive Branch worked with staff
members of the Senate in the preparation of an amendment in the
form of a substitute for S. 3957, as reported. That substitute, with one
unacceptable provision, was passed by the Senate and is now before
your Committee.

Section 202(a) and (b) clearly contemplate that any of the national
emergencies declared by the President will continue until terminated
by him or by concurrent resolution of the Congress. This accurately
reflects the approach agreed upon in discussions with the Senate staff,
as described above. However, Section 202(c) injects, presumably as
a technical error, the concej)t that a concurrent resolution could be
considered to continue as well as terminate a national emergency.
We strongly urge that this subsection be modified by deleting any
reference to continuation of national emergencies by concurrent reso-
lution. Such a change, along with any other necessary related tech-
nical changes in the subsection, would provide the essential clarifica-
tion required to make these provisions consistent with those agreed

209

upon and reflected in Section 202(a) and (b). If modified in the fore-
going manner, S. 3957 would be acceptable to the Administration.
~ The provisions of H.R. 16668 and H.R. 16743 are quite similar to
the provisions of S. 3957, as reported in the Senate. Many of the
provisions of those bills are objectionable. Those provisions are identi-
fied and discussed in the report which the General Counsel of the
Department of the Treasury sent you on November 12, 1974. We asso-
ciate ourselves with the views expressed in that report and recommend
against the enactment of either H.R. 16668 or H.R. 16745, as intro-
duced.

Sincerely,

Rot L. Ash, Director.

The General Counsel of the Treasury,

Washington, D.C., November 12, 197b.
Hon. Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives,
Washington, D.C.

Dear Mr. Chairman : Reference is made to vour requests for the
views of this Department on H.R. 16668. H.R. 16743, and S. 3957, sim-
ilar bills, "National Emergencies Act."

H.R. 16668 would terminate all national emergencies in effect at the
time of its enactment. H.R. 16743 and S. 3957 would both terminate all
powers and authorities bestowed upon governmental bodies due to
past national emergencies, although S. 3957 would exempt certain
statutes from the application of its provisions. All three bills would
establish procedures for Presidential declarations of future national
emergencies. H.R. 16668 and H.R. 16743 would provide for the auto-
matic termination of such emergencies after 180 days, absent Con-
gressional action, while S. 3957 would require Congress to meet within
six months after the declaration of such an emergencv to determine
whether such emergency should be terminated by concurrent
resolution.

H.R. 16668, H.R. 16743, and S. 3957 are variations of the "National
Emergencies Act" prepared by the Senate Special Committee on the
Termination of the National Emergencv following hearings pertain-
ing to the desirability of repealing existing national emergencies. No
hearings have been held, however, on any version of the "National
Emergencies Act."

The provisions of both H.R. 16668 and H.R. 16743 are of serious
concern to this Department. S. 3957, on the other hand, would pre-
sent few problems. The major objections of the Department relate
to those provisions in section 8 of H.R. 16668 and in section 601 of H.R.
16743 which would repeal 12 "T.S.C. 95 and 12 U.S.C. 95a (section
5(b) of the Trading with the Enemy Act). The Department opposed
the repeal of these statutes in its report to the Senate Special Com-
mittee on the Termination of the National Emergency and continues
to be opposed.

12 U.S.C. 95 relates to limitations and restrictions on the business
of members of the Eederal Reserve System "during such emergency
period as the President . . . may prescribe." The section was enacted

210

March 9, 1933, and had specific reference to declaration of the ''bank
holiday" proclaimed by the President on March 6, 1933. The statute,
although passed to ratify the action of the President in closing the
banks, is not obsolete. The language of the section invests the Execu-
tive with the authority to regulate or suspend the activities of all
banks that are members of the Federal Reserve System — which would
include all national banks — during an emergency. The Department
is of the opinion that the authority to so act in times of financial crisis
is necessary. Thus, 12 U.S.C. 95 should be retained as an emergency
statute, as would be allowed by S. 3957.

12 U.S.C. 95a, which embodies section 5(d) of the Trading With
the Enemy Act, provides for the regulation by the President during
periods of war or national emergency of banking transactions, gold
and silver activities, transactions in foreign exchange, and the exercise
of rights in property subject to American jurisdiction in which foreign
nationals have an interest. Section 5(b) of the Trading with the
Enemy Act is also codified in 50 U.S.C. App. 5 (b) . Under the authority
of section 5(b), regulations have been issued under which controls are
maintained in implementation of existing policies with respect to
North Korea, North Vietnam, and Cuba, and some $80 million of
Chinese assets have been frozen in order to be available in the settle-
ment of claims of American citizens for the expropriation of their
property 7 in mainland China.

The Department believes that section 5(b) of the Trading With
the Enemy Act is not obsolete and not only should not be repealed,
but should be excluded from the provisions of the bills as a whole,
as is provided by S. 3957. Section 5(b) should be available to deal
with financial emergencies which may arise in the future.

Furthermore, inclusion of section 5(b) under section 2 of H.R. 16668
and under section 101 of H.R. 16743 would seriously affect the nego-
tiating position of the United States with regard to the existing con-
trols, discussed previously, which regulate transactions with several
foreign countries and their nationals and which freeze significant
amounts of Chinese and Cuban assets to be held for an eventual settle-
ment of the claims of United States citizens whose property in Com-
munist China and Cuba has been seized without compensation. In this
regard, it also appears that constitutional problems might arise with
respect of the validity of continued blockings of assets of foreign coun-
tries when all national emergencies or authorities thereunder have been
terminated, as the bills contemplate. We believe that no definitive Con-
gressional action should be effected with respect to section 5(b)
through the vehicle of any of these bills. It is essential that before
any action is taken the appropriate committees closely study its poten-
tial impact on section 5(b) of the Trading With the Enemy Act. S.
3957 would exempt section 5(b) from its provisions and would enable
such a study to be made, thus satisfying our objections.

There are several other problems with H.R.* 16668 and U.Tl. 16743
which also seriously concern the Department. Section 2 of H.R. 16668
would terminate all national emergencies in effect on the date of
enactment, which we understand to be four in number. 270 days after
ennctment, and section 101 of H.R. 16743 would terminate all powers
and authorities possessed by the Executive branch due to such emer-
gencies within the same period. This nine month period was intended

211

to give the Committees of the Congress an opportunity to enact into
permanent legislation those existing programs which the Congress de-
cides should be preserved. S. 3957 provides for a one year period to
be used for the same purpose.

The Department feels that nine months, or even one year, is much
too brief a time for the Congress to deal with the significant problems
which might arise with respect to those statutes appropriately covered
by the bills. For example, American importers have relied extensively
on the practice of warehousing merchandise in Customs bonded ware-
houses for periods in excess of the initial statutory periods afforded by
sections 491, 557, and 559 of the Tariff Act of 1930. Such extensions
have been made possible by Customs regulations authorized by Procla-
mation 2948 which President Truman issued under the authority of
section 318 on the Tariff Act of 1930 (19 U.S.C. 1318), an emergency
statute. Due to the extensive reliance on these Customs regulations in
the past, a statutory replacement for the existing authority conferred
on this Department by Proclamation 2948 will be recommended. How-
ever, given the nature of the legislative process and the multitude of
other legislative programs of current importance, it is unlikely that
the grace periods provided by these bills would be sufficiently long for
the enactment of such legislation. Consequently, the Department rec-
ommends that the grace periods in all three bills be substantially
lengthened.

Section 5 of H.R. 16668 and section 402 of H.R. 16743, dealing
with future national emergencies, would provide that such emergen-
cies are automatically terminated six months after declaration unless
continued to a specified date by concurrent resolutions. Section 5 of
H.R. 16668 would further provide that no concurrent resolution
extending the termination date of a national emergency shall be valid
if agreed to more than ten days before the original expiration date.
The Department believes that these termination provisions are unde-
sirable. Instead, it would be preferable to adopt the termination proce-
dure of S. 3957, which provides that future emergencies proclaimed
by the President to deal with the highly significant national and inter-
national problems justifying such a declaration of national emergency
should continue unless declared terminated by a concurrent resolu-
tion of the Congress or by a Presidential proclamation.

Section 6 of H.R. 16668 would nrovide for the recordation of
rules and regulations promulgated during a national emergency by
the Executive and for the transmission of such rules and reflations
to the Congress at the end of such emergency. Section 501 of H.R. 1 6743
would provide that orders as well as rules and regulations should be
transmitted to the Congress as soon as practicable after issuance.
Section 501 of S. 3957 would nrovide thnt only significant orders as
^ell ns rules and regulations he transmitted to Congress promptly .
The Department agrees with the principle of these sections; indeed,
virtually all such documents of general applicability are in fact pub-
lished in the Federal Register. However, as drafted, section 501 of
^.T(. 16743 is so broad as to reouire every minute action taken under
emergency powers to be reported in this fashion, including those
with no policy significance whatsoever. This would impose an unwork-
able burden without commensurate benefit on the Executive branch.

212

In addition to the above, the Department would like to make the
following technical comments : (1) It would appear that the word "if"
should be deleted from the fifth line of section 403(a) of H.R. 16743 as
superfluous. (2) Section 8 of H.R. 16668 and section 601 of H.R. 16743
list as being repealed 50 U .S.C. 9 (e) , which does not seem to exist. (3)
Although all three bills refer to "12 U.S.C. 95(a)," the correct cita-
tion for the section is "12 U.S.C. 95a." (4) H.R. 16668 and H.R. 16743
would repeal certain sections of the United States Code which have
not been codified into statutory law and are merely prima facie evi-
dence of such law. To the extent that the law in these fields should be
repealed, it would be preferable for the language of the bills to refer
to the basic statutes which are involved.

As a result of the above, the Department has strong objections to
H.R. 16668 and H.R. 16743 as drafted. S. 3957, however, would satis-
factorily deal with all the aforementioned problems which this De-
partment has with the other two bills. Consequently, the Department
recommends favorable consideration of S. 3957 in lieu of action on
H.R. 16668 or H.R. 16743.

The Department has been advised by the Office of Management and
Budget that there is no objection from the standpoint of the Adminis-
tration's program to the submission of this report to the Committee.
Sincerely yours,

Richard R. Albrecht,

General Counsel.

General Counsel of the Department of Defense,

Washington, D.C., December &£, 1974.
Hon. Peter W. Rodino, Jr.,
Chairman* Committee o» the Jvdiciary,
House of Representatives,
Washington, D.C.

Dear Mr. Chairman : This is in reply to your request for an ex-
pression of the views of the Department of Defense on S. 3957, 93rd
Congress, an Act "To terminate certain authorities with respect to
national emergencies still in effect, and to provide for orderly imple-
mentation and termination of future national emergencies."

Although the Department of Defense participated in comprehen-
sive studies of legislation relating to existing emergencies, no formal
hearings were held in the Senate on S. 3957. and the Department of
Defense did not have an opportunity to make known its views on the
bill itself before action by the Senate. For this reason it is hoped that
the comments expressed herein will be carefully considered by your
Committee. In the event you plan to hold hearings and desire the
appearance of a representative of this Department, 1 would be pleased
to make one available.

S. 3957 would terminate, one year after its enactment, any authority
conferred on an Executive or other federal agency by law or Executive
order as a 7-esult of the existence of a state of national emergency on
the day before the termination date. The bill would authorize the
President, upon certain findings, to proclaim the existence of a future
national emergency but would require the proclamation to be trans-
mitted to Congress and published in the Federal Register. Such a
future national emergency would terminate upon a concurrent resolu-

213

tion by Congress or by a proclamation of the President. Thus, a future
national emergency could be terminated by either Congress or the
President.

As a prerequisite to the exercise of any powers or authorities made
available by statute for use in the event of an emergency, the bill
would require the President to specify the provisions of law under
which he or other officials of the Government propose to act.

Enumeration of such powers and authorities would be required to be
transmitted to Congress and published in the Federal Register. Fur-
ther, the President would be required to maintain a file and index
of all significant presidential orders and proclamations and each fed-
eral agency would be required to maintain a file or index of all rules
and regulations issued during future national emergencies. Copies
of all such presidential and federal agency issuances would be required
to be transmitted to Congress promptly.

World and national conditions have changed since President Tru-
man officially proclaimed the state of national emergency in 1950
incident to the commencement of hostilities in Korea. Many authori-
ties which were used then for the first time were regarded as extra-
ordinary. Since then, experience has demonstrated a need for these
authorities in the regular conduct of the day-to-day operations of the
Department of Defense. The desirability of terminating existing
states of emergency is recognized and no objection to their termination
is entertained by the Department of Defense. However, there are cer-
tain continuing needs, outlined below, which are accommodated by
the existing national emergency proclaimed by President Truman in
1950 but which are not specifically provided for in S. 3957 as passed
in the Senate.

First, there are 981 members of the armed forces who are still miss-
ing as a result of their participation in the recent hostilities in South-
east Asia. Although the Department of Defense is making every effort
to resolve the uncertain status of these men, several factors have ham-
pered this effort so that it is not possible to predict the exact date by
which their status will be finally determined. One of these factors is
the decree of a Federal court in a case styled Mr-Donald- v. McLucas,
U.S.D.C., S.D.N.Y., 73 Civ. 3190, which precludes the Secretaries of
the military departments from changing the status of those now classi-
fied as missing in action to killed in action until the primary next-of-
kin are afforded an opportunity to attend a hearing with counsel to
present whatever evidence they deem relevant and to examine service
files. Petition for review of this decision is now pending before the
U.S. Supreme Court. In the meantime only the emergency authority
of 10 U.S. Code 3313, 6386(c) and 8313 authorizes the suspension of
mandatory separation and retirement requirements which would other-
wise be applicable to allow some of these members to remain in the
armed forces until they return or are accounted for.

Whether or not their situation is viewed as warranting continuation
of a national emergency, it would be inequitable to force their sepa-
ration or retirement while they are in a missing status.

In the field of personnel administration, the emergency authority
of 10 U.S.C. 3444 and 8444 has been used to grant relief, by way of
temporary appointments, to officers in the chaplain, judge advocate
and medical fields who, because of constructive service credit in their

214

specialties, are considered for permanent promotion earlier than their
line officer counterparts and whose separation for failure of promotion
might become mandatory under conditions inconsistent with the needs
of the armed forces or fairness to the officers. Legislation which would,
among other things, provide a solution in permanent law for this
problem has been introduced at the request of the Department of
Defense in the House of Representatives (H.R. 12405 and H.R. 12505)
and hearings have begun on both of the bills involved. However, the
legislative changes which these bills would effect are so extensive that
it would not be realistic to expect enactment in this Congress or early
in the next.

In addition to these problems which would result from allowing
the emergency authority now provided by 10 U.S.C. 3444 and 8444
to lapse, the President, as commander-in-chief of the armed forces,
would have no authority to grant temporary appointments to truly
exceptional officers of the Army or Air Force. For example, the Presi-
dent used this authority to extend a temporary appointment to the
next higher grade to the Air Force astronauts who successfully com-
pleted suborbital or orbital flights. Continuation of this latitude is
needed so that exceptional individual contributions can still be recog-
nized through temporary appointments.

Termination of emergency authority under 10 U.S.C. 3444 and
8444 would also deny to the Army and Air Force the only authority
available in some cases to appoint alien doctors as officers to meet
increasingly critical shortages of military medical personnel.

Termination of the 1950 national emergency would also terminate
entitlement to disability retirement or separation benefits under 10
U.S.C. 1201 and 1203 for members with less than 8 years of service
whose disability, although incurred in line of duty while on active
duty, was not the proximate result of the performance of active duty.
Imposition of this limitation — which would affect only the junior
officers and enlisted men — is particularly untimely when the armed
forces are endeavoring to meet their manpower needs through volun-
tary means. Continuation of the authority to retire or separate mili-
tary personnel with less than 8 years of service who become unfit for
further service by reason of a disability incurred while in line of duty,
is needed as part of the military disability system.

S. 3957 would adversely affect defense contracting in another way,
that is, in denying the emergency exception to the requirement for

215

advertising procurements not otherwise authorized to be negotiated.
Cf. 10 U.S.C. 2304(a) (1). This exception is now narrowly limited in its
application by the pertinent Armed Services Procurement Regulation
(32 CFR 3.201), but its application affects major social and economic
policies — the policies to favor labor surplus and disaster areas ancT
small business and to achieve a balance of payments favorable to the
United States.

Continuation of several emergency authorities governing personnel
administration in the naval service is also needed. These authorities
include 10 U.S.C. 5231(c), which suspends existing limitations on the
number of admirals and vice admirals of the Navy. If this authority is
not continued, the Navy would lose approximately one half of its
three- and four-star admirals. Similarly. 10 U.S.C. 5232(b) suspends
existing limitations on lieutenant generals of the Marine Corps. If this
authority is not continued, the Marine Corps would lose five of the cur-
rently authorized seven lieutenant generals. Section 5711(b) of Title
10 authorizes the suspension of the statutory limit of 5% below-the-
zone selections specified in section 5707(c). Continuation of the au-
thority provided in 10 U.S.C. 5785(b) is needed to suspend time-in-
grade Navy and Marine Corps requirements for promotion to all
grades except lieutenant and lieutenant commander. The statute is
also the authority for suspension of the mandatory line fraction for
promotion of staff corps officers. Section 5787 of Title 10 provides for
temporary promotions in the Navy. Failure to retain this authority
would require approximately 650 limited duty officers in the grade of
lieutenant commander to revert to the grade of lieutenant. Discon-
tinuance of this authority would also require Senate confirmation of all
promotions to lieutenant (junior grade).

In view of the need for continuation of the authorities referred to
above, the Department of Defense recommends that any legislation
terminating emergency powers except the cited statutes from its effect
to preserve the substantive provisions which are now needed but which
would be lost by termination of the 1950 national emergency.

In general, the Department of Defense is in accord with the S. 3957
goal of repealing obsolete or unnecessary emergency laws. Therefore,
subject to the foregoing reservations and recommendations, this De-
partment does not object to enactment of S. 3957.

The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there is no objection to the
submission of this letter for the consideration of the Committee.
Sincerely,

Martin R. Hoffmann-.

Department of State,
Washington, B.C.. November 27. 19? '4.
Hon. Peter W. Rodino, Jr.,
Chairmsm on the Judiciary,
House of Representatives.

Dear Mr. Chairman : I have been asked to reply to your letter of
October 17 to the Secretary of State requesting views on S. 3957. a bill
"To terminate certain authorities with respect to national emergencies
still in effect, and to provide for orderly implementation and termina-
tion of future national emergencies/'

66-474 O - 76 - 15

216

The Department of State has no objection to S. 3957 as passed by
the Senate following amendments to the bill reported out of Senate
Committee.

The Office of Management and Budget advises that from the stand-
point of the Administration's program there is no objection to the sub-
mission of this report.
Cordially,

LlNWOOD HoLTON,

Assistant Secretary, for Congressional Relations.

United States of America,
General Services Administration,
Washington, B.C., November 12, 1974-
Hon. Peter W. Rodino, Jr.,

Chairman, Committee on the Judiciary, House of Representatives,
Washington, B.C.

Dear Mr. Chairman : Your letter of October 2, 1974, requested the
views of the General Services Administration on H.R. 16668 and H.R.
16743, bills concerning the termination of national emergencies and
certain authorities with respect thereto.

We attach a copy of a letter dated March 11, 1974, to Hon. Sam J.
Ervin, Jr., Chairman of the Senate Committee on Government Oper-
ations, reviewing statutory authorities that would be affected by a
termination of the current state of national emergency. Of particular
concern to us are the authorities described under the heading "II.
Statutes That Should be Designated as Essential to the Regular Func-
tioning of the Government."

We continue to support fully the views expressed in our letter to
Senator Ervin.

By letter dated October 17, 1974, you requested our views on S. 3957,
a similar bill which, as passed by the Senate on October 7, 1974, in-
cludes a section 602 stating that the provisions of the Act shall not
apply to certain listed provisions of law and the powers and authori-
ties conferred thereby. This section preserves the authorities which are
of primary concern to GSA. Accordingly, we support the Senate-
passed bill in principle, and we strongly urge that your Committee
take similar action respecting any bill on the subject which it may
report.

We note with some concern, however, that section 202(c) (1) of S.
3957, by referring to a concurrent resolution "to continue" a national
emergency, could be interpreted to require Congressional approval in
order for a national emergency to continue beyond six months. We
believe that section 202 should be revised to permit the continuance
of a national emergency beyond six months if the Congress has not
approved a resolution discontinuing it. Otherwise, if the Congress
failed to take action one way or the other under the existing provisions
within six months, the status of the national emergency and the
statutory authorities activated by it would be placed in doubt and could
result in unnecessary, lengthy, and burdensome litigation.

217

The Office of Management and Budget has advised that, from the
standpoint of the Administration's program, there is no objection to
the submission of this report to your Committee.
Sincerely,

Larry F. Roush,
Acting Assistant Administrator.
Enclosure.

United States Department of Commerce,
The Assistant Secretary for Maritime Affairs,

Y\* ashington, D.C., April 1, 1975.
Hon. Peter W. Rodino,
Chairman, Committee on the Judiciary,
House of Representatives,
M 'ashing ton, D.C.

Attention Mr. William P. Shattuck.

Dear Mr. Chairman : This is in reply to your oral request for infor-
mation with respect to section 9 of the Merchant Ship Sales Act of
1946 (50 U.S.C. App. 1742) which would be repealed bv section 601(g)
of H.R. 3884.

The purpose of the Merchant Ship Sales Act of 1946 (50 U.S.C.
App. 1735 et seq.) was to authorize the sale of several thousand mer-
chant ships of various types which had been built by or for the account
of the United States Government during the period January 1. 1941
and September 2, 1945, to provide logistical support to the Armed
Forces during World War II. It was a surplus property disposal
statute. Sales were authorized under the statute both to citizens of the
United States and to aliens. The statute provided a formula by which
he fixed sales prices of each type of vessel was to be ascertained. The
fixed prices at which each vessel was to be sold was 50 percent of the
"prewar domestic cost" was designed as the amount, as determined by
the United States Maritime Commission, for which a vessel of that
type could have been constructed on or about January 1, 1941. The
sales authority under the Act expired on January 15, 1951.

Between January 1. 1941. and March 8, 1946 (the date of enactment
of the Act), the United States Maritime Commission had sold, under
other legislation, certain vessels built during the same period to citi-
zens of the United States and had contracted to sell other vessels to
such citizens the building of which was contracted for during this
same period at prices considerably in excess of the prices at which the
same vessels would be sold under the Act. These vessels that were sold
prior to the date of enactment of the Act, nevertheless, would operate
in competition with vessels sold under that statute. As a matter of fair-
ness, and to equalize the competitive position of these vessels sold prior
to the date of enactment of the Act with that of vessels sold under that
statute, section 9 provided for an adjustment of the price of such ves-
sels sold before is enactment so that the cost of such vessels to their
owners would be the same as though the vessel had been purchased
under the Merchant Ship Sales Act of 1946.

To qualify for the adjustment, however, the owners of such vessels
were required by section 9 to apply within 60 days after the date on

218

which the United States Maritime Commission published in the Fed-
eral Register the applicable "prewar domestic costs" under the Act.
Such costs were published within a few months after the date of enact-
ment of the statute. The time within which to apply for an adjustment
has long since expired. All such applications have long ago been
processed and there is no litigation outstanding with respect to any of
them.

One of the conditions that any applicant for an adjustment had to
agree to was that if the United States requisitioned the use of his vessel
during the national emergency declared by President Roosevelt on May
27, 1941, the compensation to be paid for such use would not exceed 15
percent per annum of the fixed price at which the vessel would have
been sold under the Merchant Ship Sales Act of 1946. This emergency
was terminated by the Act of July 25, 1947 (P.L. 239, 80th Congress";
61 Stat, 449).

Section 9 of the Merchant Ship Sales Act of 1946 is now a nullity.
It does not now provide authority to do anything and no future proc-
lamation of a national emergency would provide any authority under
it. Repeal of the section, therefore, is unrelated to the purpose of H.R.
3884.

Sincerely,

Robert J. Blackwell,
Assistant Secretary for Maritime Affairs,

219
APPENDIX

Provisions of law deleted or repealed by section 601 (a) (renumbered
by Committee amendment as section 501(a)) of the bill.

^ 1. Paragraph 10 of section 349(a) of the Immigration and Nation-
ality Act (8 U.S.C. 1481(a) ).

Paragraph 10 provides for expatriation for persons remaining out-
side the jurisdiction of the United States in time of war or national
emergency to evade service in the military, Air or Naval Forces of the
United States. Paragraph 10 is shown below in italics, with the other
relevant portions of section 349, as set out as section 1481 of Title 8,
United States Code :

§ 1481. LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN [
VOLUNTARY ACTION ; BURDEN OF PROOF ; PRESUMPTIONS.

(a) From and after the effective date of this chapter a person who is
a national of the United States whether by birth or naturalization,
shall lose his nationality by —

*******

(10) departing from or remaining outside of the jurisdiction of the
United States in time of war or during a period declared by the Presi-
dent to be a period of national emergency for the purpose of evading
or avoiding training and service in the military, air, or naval forces
of the United States. For the purposes of this paragraph failure to
comply with any provision of any compulsory service laws of the
United States shall raise the presumption that the departure from
or absence from the United States teas for the purpose of evading or
avoiding training and service in the military, air, or naval forces of
the United States.

-fb-) Any person who commits or performs any act specified in sub-
section (a) of this section shall be conclusively presumed to have done
so voluntarily and without having been subjected to duress of any
kind, if such person at the time of the act was a national of the state
in which the act was performed and had been physically present in
such state for a period or periods totaling ten years or more immedi-
ately prior to such act.

(c) Whenever the loss of United States nationality is put in issue
in any action or proceeding commenced on or after September 26, 1961,
under, or by virtue of, the provisions of this chapter or any other Act,
the burden shall be upon the person or party claiming that such loss
occurred, to establish such claim by a preponderance of the evidence.
Except as otherwise provided in subsection (b) of this section, any
person who commits or performs, or who has committed or performed,
any act of expatriation under the provisions of this chapter or any

(37)

220

other Act shall be presumed to have done so voluntarily, but such pre-
sumption may be rebutted upon a showing, by a preponderance of the
evidence, that the act or acts committed or performed were not done
voluntarily.

2. Subsection 601(b) of the bill deletes paragraph 4 of section 2667
(b) of Title 10.

Paragraph 4 provides that leases of non-excess property of a mili-
tary department must contain a provision making the lease revocable
by the Secretary during a national emergency declared by the Presi-
dent. That paragraph shown in italics, together with relevant por-
tions of section 2667 of Title 10, is as follows :

§ 2667. Leases : non -excess property.

(a) Whenever the Secretary of a military department considers it
advantageous to the United States, he may lease to such lessee and
upon such terms as he considers will promote the national defense or
be in the public interest, real or personal property that is —

( 1 ) under the control of that department ;

( 2 ) not for the time needed for public use ; and

(3) not excess property, as defined by section 472 of Title 40.

(b) A lease under subsection (a) —

(1) may not be for more than five years, unless the Secretary
concerned determines that a lease for a longer period will pro-
mote the national defense or be in the public interest ;

(2) may give the lessee the first right to buy the property if the
lease is revoked to allow the United States to sell the property un-
under any other provision of law ;

(3) must permit the Secretary to revoke the lease at any time,
unless he determines that the omission of such a provision will
promote the national defense or be in the public interest ;

(4) must be revocable by the Secretary during a national emer-
gency declared by the President; and

(5) may provide, notwithstanding section 303b of Title 40 or any
other provision of law, for the maintenance, protection, repair, or
restoration, by the lessee, of the property leased, or of the entire
unit or installation where a substantial part of it is leased, as part
or all of the consideration for the lease.

(d) Money rentals received by the United States directly from a
lease under this section shall be covered into the Treasury as miscel-
laneous receipts. Payments for utilities or services furnished to the
lessee under such a lease by the department concerned may be covered
into the Treasury to the credit of the appropriation from which the
cost of furnishing them was paid.

(e) The interest of a lessee of property leased under this section
may be taxed by State or local governments. A lease under this section
shall provide that, if and to the extent that the leased property is
later made taxable by State or local governments under an act of Con-
gress, the lease shall be renegotiated.

3. Subparagraph (c) of Section 601 repeals a joint resolution
approved August 8, 1947 (12 U.S.C. 249) , concerning the regulation of
consumer credit. This act ended consumer credit control under a

221

war time Executive order as of November 1, 1947, with an exception
that the authority could be exercised during war or national emergency
after the effective date of the act. The act set out as Section 249 of
Title 12, United States Code, is as follows :

§ 249. Regulation of consumer credit.

After November 1, 1947, the Board of Governors of the Federal
Reserve System shall not exercise consumer credit controls pursuant
to Executive Order Numbered 8843, and no such consumer credit
controls shall be exercised after such date except during the time of
war beginning after August 8, 1947, or any national emergency
declared by the President after August 8, 1947.

4. Subsection (d) of Section 601 repeals Section 5(m) of the Ten-
nessee Valley Authority Act of 1933 ( 16 U.S.C. 831d (m) .

Subsection (m) bars the sale of products except ferrophosphorus
outside the United States and possessions except as to the United States
Government for military use or to its allies in the case of war or until
six months after termination of the Korean emergency, with further
restrictions. That section as set out as subsection (m) of Section 83 Id
of Title 16, United States Code, is as follows :

§ 831d. Directors; maintenance and operation of plant for pro-
duction, SALE, AND DISTRIBUTION OF FERTILIZER AND POWER.

*******

(m) No products of the Corporation except ferrophosphorus shall
be sold for use outside of the United States, its Territories and pos-
sessions, except to the United States Government for the use oi its
Army and Navy, or to its allies in case of war or, until six months
after the termination of the national emergency proclaimed by the
President on December 16, 1950, or until such earlier date or dates as
the Congress by concurrent resolution or the President may provide
but in no event after April 1, 1953, to nations associated with the
United Sates in defense activities.

5. Subsection (e) of Section 601 repeals the provisions of Section
1383 of Title 18 concerning restrictions on military areas and zones.

This is a criminal statute providing penalties for persons entering,
remaining in, leaving or commit ing any act in a military area or mili-
tary zone. Section 1383 of Title 18, United States Code is as follows :

§ 1383. Restrictions in military areas and zones.

Whoever, contrary to the restrictions applicable thereto, enters, re-
mains in, leaves, or commits any act in any military area or military
zone prescribed under the authority of an Executive order of the Presi-
dent, by the Secretary of the Army, or by any military commander
designated by the Secretary of the Army, shall, if it appears that he
knew or should have known of the existence and extent of the restric-
tions or order and that his act was in violation thereof, be fined not
more than $5,000 or imprisoned not more than one year, or both.

6. Subsection (f) of Section 601 strikes subsections (b) (c) (d) (e)
and (f ) of Section 6 of the Act of February 28, 1948, an amendment to
the Publk T ^alth Service A i concerning the promotion of commis-
sioned officers of the Public Pie. th Serv ; -e. (Feb. 28, 1948, ch. 83,
§ 6 (b-f ) . 62 Stat. 45, 42 U.S.C. 211b) .

222

The provisions repealed by the bill are obsolete.

The subsections, set out as section 211b of Title 42 are as follows :

§ 211b. Promotion of commissioned officers.

(a) Temporary promotions prior to July i, 191+8. — Except as pro-
vided in the third and fourth paragraphs of this section, no promotion
shall be made under section 211 of this title, prior to July 1, 1948. Until
that date officers of the Regular Corps may receive temporary promo-
tions to higher grades with the pay and allowances thereof pursuant
to section 211(a) (l)'of this title, in force prior to February 28, 1948,
notwithstanding the termination, prior to such date, of the war and
of the national emergencies proclaimed by the President. Any officer
holding, on June 30, 1948, an appointment pursuant to such section
to a higher temporary grade shall continue in such grade until such
appointment is terminated, as the President may direct.

(b) Service credit. — Effective as of February 28, 1948, each officer
of the Regular Corps on such date, in addition to the credit he has
under preexisting legislation for purposes of promotion, shall be
credited with three years of service.

(c) Promotion based on years of service; effective date; examina-
tion; service credit. — Officers of the Regular Corps who have, or who
on or before July 1, 1948, will have, the years of service prescribed in
paragraph (2) of section 211(d) of this title, for promotion to the
senior assistant, full, or senior grade, shall be recommended to the
President for such promotion, to be effective as of July 1, 1948, whether
or not vacancies exist in such grade. Such promotions shall be made
without examination, except that no promotions shall be made to the
senior grade or any grade immediately below a restricted grade until
the officer is found qualified for promotion pursuant to subsection (c)
of section 211 of this title. No promotion shall be made pursuant to this
paragraph to any grade in any professional category if such grade has
been made a restricted grade pursuant to subsection (b) of section 211
of this title. For purposes ofi seniority, an officer promoted under this
paragraph shall be credited with the years of service in the grade to
which promoted equal to the excess of his years of service on the date
of promotion over the years of service required for promotion to such
grade under paragraph (2) of section 211(d) of this title.

Officers in the junior assistant grade in the Regular Corps who have,
or who on or before July 1, 1948, will have four or more years of service
in the junior assistant grade, shall be recommended to the President
for promotion to the assistant grade, to be effective as of July 1, 1948,
without examination and whether or not vacancies exist in such grade.
For purposes of promotion and seniority in grade, an officer promoted
under this paragraph shall be credited with the years of service equal
to the excess of his years of service on the date of promotion over four
years.

(d) Service for purpose of seniority. — For purposes of seniority,
any officer of the Regular Corps of the Public Health Service on
February 28, 1948, shall be considered as having had service in tlie
grade which he holds on such date equal to the excess of the service
credited to him for promotion purposes over the length of service
required under section 211(d) (2) of this title, for promotion to such
grade.

223

(e) Term or tenure of office unaffected prior to July 1. 1948. — Except
as provided in the third and fourth paragraphs of this section, the
provisions of this section shall not, prior to July 1, 1948, affect the
term or tenure of office (including any office held under temporary
promotion) of any commissioned officer of the Service in office upon
February 28, 1948.

7. Subsection (g) of Section 601 repeals Section 9 of the 1946 Mer-
chant Ship Sales Act (50 App. U.S.C. 1742) .This section of the
sales act concerns price adjustment to prior sales to citizens. The Com-
mittee has been advised that the section is now a nullity, and that it
does not now provide authority to do anything and no future procla-
mation of a national emergency would provide any authority under it.
The provisions of that section as set out as Section 1742 of Title 50,
United States Code, are as follows :

§.1742. Price adjustment ox prior sales to citizens.

(a) Form, manner, and time of application. — A citizen of the United
States who on the date of the enactment of this Act [March 8, 1946] —

(1) owns a vessel which he purchased from the Commission
prior to such date, and which was delivered by its builder after
December 31. 1940: or

(2) is party to a contract with the Commission to purchase from
the Commission a vessel, which has not yet been delivered to him ;
or

(3) owns a vessel on account of which a construction-differ-
ential subsidy was paid, or agreed to be paid, by the Commission
under section 504 of the Merchant Marine Act, 1936, as amended
[section 1154 of Title 46], and which was delivered by its builder
after December 31, 1940 ; or

(4) is party to a contract with a shipbuilder for the construction
for him of a vessel, which has not yet been delivered to him, and
on account of which a construction-differential subsidy was agreed,
prior to such date, to be paid by the Commission under section
504 of the Merchant Marine Act, 1936, as amended [section 1154
of Title 46],

shall, except as hereinafter provided, be entitled to an adjustment in
the price of such vessel under this section if he makes application
therefor, in such form and manner as the Commission may prescribe,
within sixty days after the date of publication of the applicable prewar
domestic costs in the Federal Register under section 3(c) of this Act
[section 1736(c) of this Appendix]. No adjustment shall be made
under this section in respect of any vessel the contract for the con-
struction of whioh was made after September 2, 1945, under the pro-
visions of title V [subchapter V of chapter 27 of Title 46] (including
section 504 [section 1154 of Title 46]) or title VII of the Merchant
Marine Act, 1936, as amended [subchapter VII of chapter 27 of Title
46].

(b) Determination of amount. — Such adjustment shall be made, as
hereinafter provided, by treating the vessel as if it were being sold to
the applicant on the date of the enactment of this Act [March 8, 1946],
and not before that time. The amount of such adjustment shall be
determined as follows :

224

( 1 ) The Commission shall credit the applicant with the excess of
the cash payments made upon the original purchase price of the
vessel over 25 per centum of the statutory sales price of the vessel
as of such date of enactment [March 8, 1946]. If such payment was
less than 25 per centum of the statutory sales price of the vessel,
the applicant shall pay the difference to the Commission.

(2) The applicant's indebtedness under any mortgage to the
United States with respect to the vessel shall be adjusted.

(3) The adjusted mortgage indebtedness shall be in an amount
equal to the excess of the statutory sales price of the vessel as of
the date of the enactment of this Act [March 8, 1946] over the
sum of the cash payment retained by the United~5tates under para-
graph (1) plus the readjusted trade-in allowance (determined
under paragraph (7) ) with respect to any vessel exchanged by the
applicant on the original % purchase. The adjusted mortgage in-
debtedness shall be payable in equal annual installments thereafter
during the remaining life of such mortgage with interest on the
portion of the statutory sales price remaining unpaid at the rate
of 31/2 per centum per annum.

(4) The Commission shall credit the applicant with the excess,
if any, of the sum of the cash payments made by the applicant
upon the original purchase price of the vessel plus the readjusted
trade-in allowance (determined under paragraph (7) ) over the
statutory sales price of the vessel as of the date of the enactment of
this Act [March 8, 1946] to the extent not credited under para-
graph (1).

(5) The Commission shall also credit the applicant with an
amount equal to interest at the rate of ZV 2 P er centum per annum
(for the period beginning with the date of the original delivery
of the vessel to the applicant and ending with the date of the
enactment of this Act [March 8, 1946] ) on the excess of the orig-
inal purchase price of the vessel over the amount of any allowance
allowed by the Commission on the exchange of any vessel on such
purchase; the amount of such credit first being reduced by any
interest on the original mortgage indebtedness accrued up to such
date of enactment and unpaid. Interest so accrued and unpaid
shall be canceled.

(6) The applicant shall credit the Commission with all amounts
paid by the United States to him as charter hire for use of the
vessel (exclusive of service, if any, required under the terms of
the charter) under any charter party made prior to the date of
the enactment of this Act [March 8, 1946] , and any charter hire for
such use accrued up to such date of enactment and unpaid shall be
canceled; and the Commission shall credit the applicant with
the amount that would have been paid by the United States to the
applicant as charter hire for bare-boat use of vessels exchanged
by the applicant on the original purchase (for the period begin-
ning with date on which the vessels so exchanged were delivered
to the Commission and ending with the date of the enactment of
this Act [March 8, 1946] ) .

(7) The allowance made to the applicant on any vessel ex-
changed by him on the original purchase shall be readjusted so

225

as to limit such allowance to the amount provided for under
section 8 [section 1741 of this Appendix].

(8) There shall be subtracted from the sum of the credits in
favor of the Commission under the foregoing provisions of this
subsection the amount of any overpayments of Federal taxes by
the applicant resulting from the application of subsection (c) (1)
of this section, and there shall be subtracted from the sum of the
credits in favor of the applicant under the foregoing provisions
of this subsection the amount of any deficiencies in Federal taxes
of the applicant resulting from the application of subsection (c)
(1) of this section. If. after making such subtractions, the sum of
the credits in favor of the applicant exceeds the sum of the credits
in favor of the Commission, such excess shall be paid by the Com-
mission to the applicant. If, after making such subtractions, the
sum of the credits in favor of the Commission exceeds the sum of
the credits in favor of the applicant, such excess shall be paid by
the applicant to the Commission. Upon such payment by the
Commission or the applicant, such overpayments shall be treated
as having been refunded and such deficiencies as having been paid.
For the purposes of this subsection, the purchase price of a vessel on
account of which a construction-differential subsidy was paid or agreed
to be paid under section 504 of the Merchant Marine Act. 1936, as
amended [section 1154 of Title 46], shall be the net cost of the vessel
to the owner.

(c) Conditions binding on applicant. — An adjustment shall be made
under this section onlv if the applicant enters into an* agreement with
the Commission binding upon the citizen applicant and any affiliated
interest to the effect that —

(1) depreciation and amortization allowed or allowable with
respect to the vessel up to the date of the enactment of this Act
[March 8, 1946] for Federal tax purposes shall be treated as not
having been allowable : amounts credited to the Commission under
subsection (b) (6) of this section shall be treated for Federal tax
purposes as not having been received or accrued as income:
amounts credited to the applicant under subsection (b) (5) and
(6) of this section shall be treated for Federal tax purposes as
having been received and accrued as income in the taxable year
in which falls the date of the enactment of this Act (March 8,
1946) ;

(2) the liability of the United States for use (exclusively of
service, if any, required under the terms of the charter) of the
vessel on or after the date of the enactment of this Act [March 8,
1946] under any charter partv shall not exceed 15 per centum per
annum of the statutory sales price of the vessel as of such date of
enactment [March 8. 1946] and the liability of the United States
under any such charter party for loss of the vessel shall be deter-
mined on the basis of the statutory sales price as of the date of the
enactment of this Act [March 8, 1946], depreciated to the date of
loss at the rate of 5 per centum per annum : Provided, That the
provisions of this subsection (c) (2) [of this section] shall not
apply to any such charter party executed on or after the date of
enactment of this amendatory ^provision [August 6, 1956]; and
the Secretary of Commerce is directed to modify any adjustment

226

agreement to the extent necessary to conform to the provisions
of this amendatory proviso ; and

' (3) in the event the United States, prior to the termination of
the existing national emergency declared by the President on
May 27, 1941, uses such vessel pursuant to a taking, or pursuant
to a bare-boat charter made, on or after the date of the enactment
of this Act [March 8, 1946] , the compensation to be paid to the
purchaser, his receivers, and trustees, shall in no event be greater
than 15 per centum per annum of the statutory sales price as of
such date,
(d) Applicability of other law. — Section 506 of the Merchant Ma-
rine Act, 1936, as amended [section 1156 of Title 46], shall not apply
with respect to (1) any vessel which is eligible for an adjustment
under this section, or (2) any vessel described in clause (1), (2), (3),
or (4) of subsection (a) of this section, the contract for the construc-
tion of which is made after September 2, 1945, and prior to the date
of enactment of this Act [March 8, 1946].

Section 602(a) of the bill H.K. 3884 (renumbered by Committee
amendment as section 501(a) ) provides that the provisions of the Act
will not apply to the listed provisions of law and related powers,
authorities and actions thereunder.

1. Clause 1 cites section 5(b) of the Act of October 6, 1917, The
Trading With the Enemy Act, presently set out as 12 U.S.C. 95a and
50U.S.C.A : pp.5(b).

This section concerns the regulation of transactions in foreign ex-
change of gold and silver, property transfers in which any foreign
country or national thereof has an interest and provides for the
administration of assets or property. This section as classified to Title
12 as section 95a is as follows :

§ 95a. Regulation of transactions in foreign exchange of gold

AND SILVER ; PROPERTY TRANSFERS J VESTED INTERESTS, ENFORCE-
MENT AND PENALTIES.

(1) During the time of war or during any other period of national
emergency declared by the President, the President may, through
any agency that he may designate, or otherwise, and under such rules
and regulations as he may prescribe, by means of instructions, licenses,
or otherwise —

(A) investigate, regulate, or prohibit any transactions in for-
eign exchange, transfers of credit or pavments between, by,
through, or to any banking institution, and the importing, export-
ing, hoarding, melting, or earmarking of gold or silver coin or
bullion, currency or securities, and

(B) investigate, regulate, direct and compel, nullify, void, pre-
vent or prohibit, any acquisition holding, withholding, use, trans-
fer, withdrawal, transportation, importation or exportation of , or
dealing in, or exercising any right, power, or privilege with
respect to, or transactions involving, and property in which any
foreign country or a national thereof has any interest,

227

by any person, or with respect to any property, subject to the juris-
diction of the United States; and any property or interest of any
foreign country or national thereof shall vest, when, as, and upon the
terms, directed by the President, in such agency or person as may be
designated from time to time by the President, and upon such terms
and conditions as the President may prescribe such interest or prop-
erty shall be held, used, administered, liquidated, sold, or otherwise
dealt with in the interest of and for the benefit of the United States,
and such designated agency or person may perform any and all acts
incident to the accomplishment or furtherance of these purposes:
and the President shall, in the manner hereinabove provided, require
any person to keep a full record of. and to furnish under oath, in the
form of reports or otherwise, complete information relative to any act
or transaction referred to in this section either before, during, or after
the completion thereof, or relative to any interest in foreign property,
or relative to any property in which any foreign country or any
national thereof has or has had any interest, or as may be otherwise
necessary to enforce the provisions of this section, and in any case in
which a report could be required, the President may, in the manner
hereinabove provided, require the production, or if necessary to the
national security or defense, the seizure, of any books of account,
records, contracts, letters, memoranda, or other papers, in the custody
or control of such person; and the President may, in the manner
hereinabove provided, take other and further measures not incon-
sistent herewith for the enforcement of this section.

(2) Any payment, conveyance, transfer, assignment, or delivery
of property or interest therein, made to or for the account of the United
States, or as otherwise directed, pursuant to this section or any rule,
regulation, instruction, or direction issued hereunder shall to the
extent thereof be a full acquittance and discharge for all purposes of
the obligation of the person making the same; and no person shall
be held liable in any court for or in respect to anything done or omitted
in good faith in connection with the administration of, or in pursuance
of and in reliance on. this section, or any rule, regulation, instruction,
or direction issued hereunder.

(3) As used in this section the term "United States'' means the
United States and any place subject to the jurisdiction thereof: Pro-
vided, however, That the foregoing shall not be construed as a limita-
tion upon the power of the President, which is conferred, to prescribe
from time to time, definitions, not inconsistent with the purposes of
this section, for any or all of the terms used in this section. Whoever
willfully violates any of the provisions of this section or of any license,
order, rule or regulation issued thereunder, shall, upon conviction, be
fined not more than $10,000, or, if a natural person, may be imprisoned
for not more than ten years, or both ; and any officer, director, or agent
of any corporation who knowingly participates in such violation may
be punished by a like fine, imprisonment, or both. As used in this sec-
tion the term "person" means an individual, partnership, association,
or corporation.

2. Clause 2 continues in effect the provisions of section 673 of Title
10 concerning the call up of the Ready Reserve. The Committee amend-
ment would delete this clause from the bill.

228

§ 673. Ready Reserve.

(a) In time of national emergency declared by the President after
January 1, 1953, or when otherwise authorized by law, an authority
designated by the Secretary concerned may, without the consent of
the persons concerned, order any unit, and any member not assigned
to a unit organized to serve as a unit, in the Ready Reserve under the
jurisdiction of that Secretary to active duty (other than for training)
for not more than 24 consecutive months.

(b) To achieve fair treatment as between members in the Ready
Reserve who are being considered for recall to duty without their con-
sent, consideration shall be given to —

(1) the length and nature of previous service, to assure such
sharing of exposure to hazards as the national security and mili-
tary requirements will reasonably allow ;

( 2 ) family responsibilities ; and

(3) employment necessary to maintain the national health,
safety, or interest.

The Secretary of Defense shall prescribe such policies and procedures
as he considers necessary to carry out this subsection. He shall report on
those policies and procedures at least once a year to the Committees on
Armed Services of the Senate and the House of Representatives.

(c) Not more than 1,000,000 members 'of the Ready Reserve may be
on active duty (other than for training), without their consent, under
this section at any one time.

3. Clause 3 continues in effect the provisions of the Act of April 28,
1942, set out as 40 U.S.C. 278b. This Act made an exception to the
existing provisions of law concerning maximum rental of leases in
cases relating to vital leases during a war or national emergency. The
Act as set out in section 278b of Title 40, United States Code, is as
follows :

§278b. Same; exception of certain vital leases during war or

EMERGENCY.

The provisions of section 278a of this title shall not apply during
war or a national emergency declared by Congress or by the President
to such leases or renewals of existing leases of privately or publicly
owned property as are certified by the Secretary of the Army or the
Secretary of the Navy, or by such person or persons as he may desig-
nate, as covering premises for military, naval, or civilian purposes
necessary for the prosecution of the war or vital in the national
emergency.

4. Clause 4 continues in effect the provisions of the Act of June 30,
1949, set out as 41 U.S.C. 252. (Act of June 30, 1949, ch. 288, Title II,
§ 302, 63 Stat. 393, as amended). The Act provides authority to make
purchases, and to make contracts for property and services, and in
subsection (c) (1) contains an exception to a requirement of adver-
tising such purchases or contracts where it is determined in the public
interest during a period of national emergency declared by the Presi-
dent or by the Congress.

§ 252. Purchases and contracts for property.

(a) Applicability of chapter; delegation of authority. — Executive
agencies shall make purchases and contracts for property and services

229

in accordance with the provisions of this chapter and implementing
regulations of the Administrator; but this chapter does not apply—

(1) to the Department of Defense, the Coast Guard, and the
National Aeronautics and Space Administration; or

(2) when this chapter is made inapplicable pursuant to section
474 of Title 40 or any other law, but when this chapter is made
inapplicable by any such provision of law, sections 5 and 8 of this
title shall be applicable in the absence of authority conferred by
statute to procure without advertising or without regard to said
section 5 of this title.

(b) Small business concerns; share of business; advance publicity
on negotiated purchases and contracts for property. — It is the declared
policy of the Congress that a fair proportion of the total purchases
and contracts for property and services for the Government shall be
placed with small business concerns. Whenever it is proposed to make
a contract or purchase in excess of $10,000 by negotiation and without
advertising, pursuant to the authority of paragraph (7) or (8) of sub-
section (c) of this section, suitable advance publicity, as determined
by the agency head with due regard to the type of property involved
and other relevant considerations, shall be given for a period of at least
fifteen days, wherever practicable, as determined by the agency head.

(c) Negotiated purchases and contracts for property ; conditions. —
All purchases and contracts for property and services shall be made
by advertising, as provided in section 253 of this title, except that
such purchases and contracts may be negotiated by the agency head
without advertising if —

(1) determined to be necessary in the public interest during
the period of a national emergency declared by the President or
by the Congress;

(2) the public exigency will not admit of the delay incident
to advertising;

(3) the aggregate amount involved does not exceed $2,500;

(4) for personal or professional services;

(5) for any service to be rendered by any university . college, or
other educational institutions;

(6) the property or services are to be procured and used out-
side the limits of the United States and its possessions;

(7) for medicines or medical property ;

(8) for property purchased for authorized resale;

(9) for perishable or nonperishable subsistence supplies:

(10) for property or services for which it is impracticable to
secure competition:

(11) the agency head determines that the purchase or contract
is for experimental, developmental, or research work, or for the
manufacture or furnishing of property for experimentation, de-
velopment, research, or test;

(12) for property or services as to which the agency head deter-
mines that the character, ingredients, or components thereof are
such that the purchase or contract should not be publicly
disclosed :

(13) for equipment which the agency head determines to be
technical equipment, and as to which he determinas that the pro-

230

curement thereof without advertising is necessary in special situa-
tions or in particular localities in order to assure standardization
of equipment and interchangeability of parts and that such stand-
ardization and interchangeability is necessary in the public
interest ;

(14) for property or services as to which the agency head de-
termines that bid prices after advertising therefor are not rea-
sonable (either as to all or as to some part of the requirements)
or have not been independently arrived at in open competition :
Provided, That no negotiated purchase or contract may be entered
into under this paragraph after the rejection of all or some of the
bids received unless (A) notification of the intention to negotiate
and reasonable opportunity to negotiate shall have been given by
the agency head to each responsible bidder and (B) the negoti-
ated price is the lowest negotiated price offered by any responsi-
ble supplier ; or

(15) otherwise authorized by law, except that section 254 of
this title shall apply to purchases and contracts made without
advertising under this paragraph.

(d) Bids in violation of antitrust laws. — If in the opinion of the
agency head bids received after advertising evidence any violation
of the antitrust laws he shall refer such bids to the Attorney General
for appropriate action.

(e) Exceptions to section. — This section shall not be construed to
(A) authorize the erection, repair, or furnishing of any public build-
ing or public improvement, but such authorization shall be required
in the same manner as heretofore, or (B) permit any contract for the
construction or repair of buildings, roads, sidewalks, sewers, mains,
or similar items to be negotiated without advertising as required by
section 253 of this title, unless such contract is to be performed outside
the continental United States or unless negotiation of such contract
is authorized by the provisions of paragraphs (l)-(3), (10) -(12), or
(14) of subsection (c) of this section.

(f ) Carriage of cargo; specification of container size. — No contract
for the carriage of Government property in other than Government-
owned cargo containers shall require carriage of such property in
cargo containers of any^ stated length, height, or^ width.

5. Clause 5 continues in force the provisions of section 347T oFthe
Revised Statutes, set out in the Code as section 203 of Title 31. This
section concerns the assignment of claims upon the United States and
contains a provision that in time of war or national emergency, con-
tracts may contain a provision that assignments of money due under
a contract may not be subject to reduction or set-off for liability of the
assignor as specified in the section.

§ 203. Assignments of claims ; set-off against assignee.

All transfers and assignments made of any claim upon the United
States, or of any part or share thereof, or interest therein, whether abso-
lute or conditional, and whatever may be the consideration therefor,
and all powers of attorney, orders, or other authorities for receiving
payment of any such claim, or of any part or share thereof, except as
hereinafter provided, shall be absolutely null and void, unless they
are freely made and executed in the presence of at least two attesting
witnesses, after the allowance of such a claim, the ascertainment of the

231

amount due, and the issuing of a warrant for the payment thereof.
Such transfers, assignments, and powers of attorney, must recite the
warrant for payment, and must be acknowledged by the person making
them, before an officer having authority to take acknowledgments of
deeds, and shall be certified by the officer ; and it must appear by the
certificate that the officer, at the time of the acknowledgment, read and
fully explained the transfer, assignment, or warrant of attorney to the
person acknowledging the same. The provisions of this section shall.
not apply to payments for rent of post office quarters made by post-
masters to duly authorized agents of the lessors.

1. That in the case of any contract entered into prior to October 9,
1940, no claim shall be assigned without the consent of the head of the
department or agency concerned ;

2. That in the case of any contract entered into after October 9. 1940,
no claim shall be assigned if it arises under a contract which forbids
such assignment;

3. That unless otherwise expressly permitted by such contract any
such assignment shall cover all amounts payable under such contract
and not already paid, shall not be made to more than one party, and
shall not be subject to further assignment, except that any such assign-^
ment may be made to one party as agent or trustee for two or more par-'
ties participating in such financing ;

4. That in the event of any such assignment, the assignee thereof
shall file written notice of the assignment together with a true copy of
the instrument of assignment with (a) the contracting officer or the
head of his department or agency; (b) the surety or sureties upon the
bond or bonds, if any, in connection with such contract; and (c) the
disbursing officer, if any. designated in such contract to make payment.

Notwithstanding any law to the contrary governing the validity of
assignments, any assignment pursuant to this section, shall constitute
a valid assignment for all purposes.

In any case in which moneys due or to become due under any con-
tract are or have been assigned pursuant to this section, no liability of
any nature of the assignor to the United States or any department or
agency thereof, whether arising from or independently of such con-
tract, shall create or impose any liability on the part of the assignee to
make restitution, refund, or repayment to the United States of any
amount heretofore since July 1, 1950, or hereafter received under the
assignment.

Anv contract of the Department of Defense, the General Services
Admmistration, the Atomic Energy Commission, or any other depart-
ment or agency of the United States designated by the President,
except any such contract under which full payment has been made,
may, in time of war or national emergency proclaimed by the President
(including the national emergency proclaimed December 16, 1950) or
by Act or joint resolution of the Congress and until such war or na-
tional emergency has been terminated in such manner, provide or be

i-474 O - 76 - 16

232

amended without consideration to provide that payments to be made
to the assignee of any moneys due or to become due under such contract
shall not be subject to reduction or set-off, and if such provision or
one to the same general effect has been at any time heretofore or is
hereafter included or inserted in any such contract, payments to be
made thereafter to an assignee of any moneys due or to become due
under such contract, whether during or after such war or emergency,
shall not be subject to reduction or set-off for any liability of any nature
of the assignor to the United States or any department or agency
thereof which arises independently of such contract, or hereafter for
any liability of the assignor on account of (1) renegotiation under
any renegotiation statute or under any statutory renegotiation article
in the contract, (2) fines, (3) penalties (which term does not include
amounts which may be collected or withheld from the assignor in
accordance with or for failure to comply with the terms of the con-
tract), or (4) taxes, social security contributions, or the withholding
or nonwithholding of taxes or social security contributions, whether
arising from or independently of such contract. '

Except as herein otherwise provided, nothing in this section shall
be deemed to affect or impair rights or obligations heretofore accrued.

6. Clause 6 continues in effect the provisions of section 3737 of the
Revised Statutes, also set out as section 15 of Title 41 of the United
States Code. This section also has to do with the assignment of claims
and set-off against the assignee, and contains language similar to that
found in the section referred to in Clause 5.

§ 15 Transfers of contracts ; assignments of claims ; set-off against
assignee

No contract or order, or any interest therein, shall be transferred
by the party to whom such contract or order is given to any other party,
and any such transfer shall cause the annulment of the contract or
order transferred, so far as the United States are concerned. All rights
of action, however, for any breach of such contract by the contracting
parties, are reserved to the United States.

The provisions of the preceding paragraph shall not apply in any
case in which the moneys due or to become due from the United States
or from any agency or department thereof, under a contract providing
for payments aggregating $1,000 or more, are assigned to a bank, trust
company, or other financial institution, including any Federal lending
agency : Provided, 1. That in the case of any contract entered into prior
to October 9, 1940, no claim shall be assigned without the consent of
the head of the department or agency concerned ; 2. That in the case
of any contract entered into after October 9, 1940, no claim shall be
assigned if it arises under a contract which forbids such assignment ;
3. That unless otherwise expressly permitted by such contract any
such assignment shall cover all amounts payable under such contract
and not already paid, shall not be made to more than one party, and
shall not be subject to further assignment, except that any such
assignment may be made to one party as agent or trustee for two or
more parties participating in such financing ; 4. That in the event of
any such assignment, the assignee thereof shall file written notice of
the assignment together with a true copy of the instrument of assign-
ment with (a) the contracting officer or the head of his department or
agency; (b) the surety or sureties upon the bond or bonds, if any, in

233

connection with such contract; and (c) the disbursing officer, if any,
designated in such contract to make payment.

Notwithstanding any law to the contrary governing the validity of
assignments, any assignment pursuant to this section, shall constitute
a valid assignment for all purposes.

Any contract of the Department of Defense, the General Services
Administration, the Atomic Energy Commission, or any other depart-
ment or agency of the United States designated by the President, ex-
cept any such contract under which full payment has been made, may,
in time of war or national emergency proclaimed by the President (in-
cluding the national emergency proclaimed December 16, 1950) or by
Act or joint resolution of the Congress and until such war or national
emergency has been terminated in such manner, provide or be
amended without consideration to provide that payments to be made
to the assignee of any moneys due or to become due under such contract
shall not be subject to reduction or set-off, and if such provision or one
to the same general effect has been at any time heretofore or is here-
after included or inserted in any such contract, payments to be made
thereafter to an assignee of any moneys due or to become due under
such contract, whether during or after such war or emergency, shall
not be subject to reduction or set-off for any liability of any nature of
the assignor to the United States or any department or agency thereof
which arises independently of such contract, or hereafter for any
liability of the assignor on account of (1) renegotiation under any
renegotiation statute or under anv statutory renegotiation article in
the contract, (2) fines, (3) penalties (which term does not include
amounts which may be collected or withheld from the assignor in
accordance with or for failure to comply with the terms of the con-
tract), or (4) taxes, social security contributions, or the withholding
or non withholding of taxes or social security contributions, whether
aising from or independently of such contract.

Except as herein otherwise provided, nothing in this section, shall be
deemed to affect or impair rights or obligations heretofore accrued.

The Committee amendment would add the three following references
to section 602(a) which would be renumbered as section 502(a), and
they would be designated as clauses 6, 7, and 8.

6. Public Law 85-804 (72 Stat. 972; 50 U.S.C. 1431-1435). The law
permits departments or agencies exercising functions in connection
with the national defense to deal with unusual contract situations. This
includes correction of mistakes in contracts, formalization of informal
commitments, indemnification of contractors for unusually hazardous
risks, and other extraordinary contractual relief. In 1972, the Commis-
sion on Government Procurement recommended that this authority be
made permanent. The law is as follows :

234

AX ACT To authorize the making, amendment, and modification of contracts to
facilitate the national defense

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the President
may authorize any department or agency of the Government which
exercises functions in connection with the national defense, acting in
accordance with regulations prescribed by the President for the pro-
tection of the Government, to enter into contracts or into amendments
or modifications of contracts heretofore or hereafter made and to make
advance payments thereon, without regard to other provisions of law
relating to the making, performance, amendment, or modification of
contracts, whenever he deems that such action would facilitate the
national defense. The authority conferred by this section shall not
be utilized to obligate the United States in an amount in excess of
$50,000 without approval by an official at or above the level of an
Assistant Secretary or his Deputy, or an assistant head or his deputy,
of such department or agency, or by a Contract Adjustment Board
established therein.

Sec. 2. Nothing in this Act shall be construed to constitute authori-
zation hereunder for —

(a) the use of the cost-plus-a-percentage-of-cost system of con-
tracting ;

(b) any contract in violation of existing law relating to limita-
tion of profits ;

(c) the negotiation of purchases of or contracts for property or
services required by law to be procured by formal advertising and
competitive bidding;

(d) the waiver of any bid, payment, performance, or other
bond required by law;

(e) the amendment of a contract negotiated under section 2304
(a) (15), Title 10, United States Code, or under section 302(c)
(13) of the Federal Property and Administrative Services Act
of 1949, as amended (63 Stat. 377, 394), to increase the contract
price to an amount higher than the lowest rejected bid of any
responsible bidder ; or

(f) the formalization of an informal commitment, unless it is
found that at the time the commitment was made it was imprac-
ticable to use normal procurement procedures.

Sec. 3. (a) All actions under the authority of this Act shall be
made a matter of public record under regulations prescribed by the
President and when deemed 'by him not to be detrimental to the
national security.

(b) All contracts entered into, amended, or modified pursuant to
authority contained in this Act shall include a clause to the effect that
the Comptroller General of the United States or any of his duly
authorized representatives shall, until the expiration of three years
after final payment, have access to and the right to examine any
directly pertinent books, documents, papers, and records of the con-
tractor or any of his subcontractors engaged in the performance of
and involving transactions related to such contracts or subcontracts.

Sec. 4. (a) Every department and agency acting under authority
of this Act shall, by March 15 of each year, report to Congress all
such actions taken by that department or agency during the preceding

235

calendar year. With respect to actions which involve actual or poten-
tial cost to the United States in excess of $50,000, the report shall —

( 1 ) name the contractor ;

(2) state the actual cost or estimated potential cost involved;

(3) describe the property or services involved; and

(4) state further the circumstances justifying the action taken.
With respect to (1), (2), (3), and (4) , above, and under regulations

prescribed by the President, there may be omitted any information
the disclosure of which would be detrimental to the national security.

(b) The Clerk of the House and the Secretary of the Senate shall
cause to be published in the Congressional Record all reports sub-
mitted pursuant to this section.

Sec. 5. This Act shall be effective only during a national emergency
declared by Congress or the President and for six months after the
termination thereof or until such earlier time as Congress, by concur-
rent resolution, may designate.

7. Section 2304(a)(1) of Title 10. U.S.C. Clause (1) of subsection
(a) of section 2304 provides an exception to the requirement for formal
advertising. (This is identical language to that in clause (1) of sub-
section (c) of section 302 of the Act of June 30, 1949, referred to in
section 602(a) (4) of H.R. 3884.) The testimony at the hearing was
that this authority is used to provide for contracts for small business,
and to place contracts in labor surplus areas and disaster areas. The
full section 2304 is as follows with clause (1) shown in italics:

§ 2304. Purchases and contracts : formal advertising ; exceptions.
(a) Purchases of and contracts for property or services covered by
this chapter shall be made by formal advertising in all cases in which
the use of such method is feasible and practicable under the existing
conditions and circumstances. If use of such method is not feasible
and practicable, the head of an agency, subject to the requirements
for determinations and findings in section 2310, may negotiate such
a purchase or contract, if —

{1) it is determined that such action is necessary in the public
interest during a national emergency declared by Congress or the
President;

(2) the public exigency will not permit the delay incident to
advertising ;

(3) the aggregate amount involved is not more than $2,500;

(4) the purchase or contract is for personal or professional
services;

(5) the purchase or contract is for any service by a university,
college, or other educational institution ;

(6) the purchase or contract is for property or services to be
procured and used outside the United States and the Territories,
Commonwealths, and possessions ;

(7 ) the purchase or contract is for medicine or medical supplies ;

(8) the purchase or contract is for property for authorized
resale;

(9) the purchase or contract is for perishable or nonperishable
subsistence supplies;

(10) the purchase or contract is for property or services for
which it is impracticable to obtain competition ;

236

(11) the purchase or contract is for property or services that
he determines to be for experimental, developmental, or research
work, or for making or furnishing property for experiment, test,
development, or research ;

(12) the purchase or contract is for property or services whose
procurement he determines should not be publicly disclosed because
of their character, ingredients, or components ;

(13) the purchase or contract is for equipment that he deter-
mines to be technical equipment whose standardization and the
interchangeability of whose parts are necessary in the public
interest and whose procurement by negotiation is necessary to
assure that standardization and interchangeability ;

(14) the purchase or contract is for technical or special prop-
erty that he determines to require a substantial initial investment
or an extended period of preparation for manufacture, and for
which he determines that formal advertising would be likely to
result in additional cost to the Government by reason of duplica-
tion of investment or would result in duplication of necessary
preparation which would unduly delay the procurement of the
property ;

(15) the purchase or contract is for property or services for
which he determines that the bid prices received after formal
advertising are unreasonable as to all or part of the requirements,
or were not independently reached in open competition, and for
which (A) he has notified each responsible bidder of intention
to negotiate and given him reasonable opportunity to negotiate ;
(B) the negotiated price is lower than the lowest rejected bid of
any responsible bidder, as determined by the head of the agency ;
and (C) the negotiated price is the lowest negotiated price offered
by any responsible supplier ;

(16) he determines that (A) it is in the interest of national de-
fense to have a plant, mine, or other facility, or a producer, manu-
facturer, or other supplier, available for furnishing property or
services in case of a national emergency; or (B) the interest of
industrial mobilization in case of such an emergency, or the in-
terest of national defense in maintaining active engineering, re-
search, and development, would otherwise be subserved ; or
research, and development, would otherwise be subserved ; or

(17) negotiation of the purchase or contract is otherwise au-
thorized by law.

(b) The data respecting the negotiation of each purchase or con-
tract under clauses (1) and (7) — (17) of subsection (a) shall be kept
by the contracting agency for six years after the date of final payment
on the contract.

(1) the negotiation of a contract to construct or repair any
building, road, sidewalk, sewer main, or similar item, unless —

(A) it is made under clauses (1) — (3), (10) — (12), or (15)
of subsection (a) ; or

(B) it is to be performed outside the United States; or

(2 the erection, repair, or furnishing of any public building or
public improvement.

237

(d) Whenever the head of the agency determines it to be practicable,
such advance publicity as he considers suitable with regard to the
property involved and other relevant considerations shall be given for
a period of at least 15 days before making a purchase of or contract for
property, or a service, under clause (7) or (8) of subsection (a) in-
volving more than $10,000.

(e) A report shall be made to Congress, on May 19 and ^November
19 of each year, of the purchases and contracts made under clauses
(11) and (16) of subsection (a) during the period since the date of
the last report. The report shall —

( 1 ) name each contractor ;

(2) state the amount of each contract; and

(&) describe, with consideration of the national security, the
propertv and services covered by each contract.

(f ) For the purposes of the following laws, purchases or contracts
negotiated under this section shall be treated as if they were made with
formal advertising:

(1) Sections 35 — 15 of Title 41.

( 2 ) Sections 276a— 276a-5 of Title 40.

(3) Sections 324 and 325a of Title 40.

(g) In all negotiated procurements in excess of $2,500 in which rates
or prices are not fixed by law or regulation and in which time of de-
livery will permit, proposals, including price, shall be solicited from
the maximum number of qualified sources consistent with the nature
and requirements of the supplies or services to be procured, and writ-
ten or oral discussions shall be conducted with all responsible offerors
who submit proposals with a competitive range, price, and other fac-
tors considered: Provided, however, That the requirements of this
subsection with respect to written or oral discussions need not be ap-
plied to procurements in implementation of authorized set-aside pro-
grams or to procurements where it can be clearly demonstrated from
the existence of adequate competition or accurate prior cost experience
with the product, that acceptance of an initial proposal without dis-
cussion would result in fair and reasonable prices and where the re-
quest for proposals notifies all offerors of the possibility that award
may be made without discussion. ^_

(h) Except in a case where the Secfetarv of Defense determines
that military requirements necessitate specification of container sizes,
no contract for the carriage of Government property in other than
Government-owned cargo containers shall require carriage of such
propertv in cargo containers of anv stated length, height, or width.
(Aug. 10, 1956. ch. 1041, 70A Stat, 128; Aug. 28, 1958, Pub. L. 85-800,
§ 7, 72 Stat. 967; Sept. 2, 1958. Pub. L. 85-861, § 33(a) (12), 72 Stat.
1565; Sept. 10, 1962. Pub. L. 87-653. § l(a)-(c), 76 Stat, 528; Mar. 16,
1968, Pub. L. 90-286, § 5, 82 Stat. 50; Sept. 20, 1968, Pub. L. 90-500,
Title IV, § 405, 82 Stat. 851.)

8. Sections 3313, 6386(c) and 8313 of Title 10. These provisions pro-
vide authority to suspend laws for mandatory retirement or separa-
tion during war or national* emergency. The committee was advised
that this authority makes it possible to suspend such requirements as
to some of the 913 armed forces members missing in action in South-
east Asia. The provisions presently permit them to remain in the

238

Armed Services until they return or are accounted for. The three sec-
tions are as follows :

§ 3313. Suspension op laws for promotion or mandatory retirement
or separation during war or emergency.
In time of war, or of emergency declared by Congress or the Presi-
dent, the President may suspend the operation of any provision of law
relating to promotion, or (mandatory retirement or separation, of com-
missioned officers of the Regular Army. (Aug. 10, 1956, ch. 1041, 70A
Stat. 193.)

§ 8313. Suspension of laws for promotion or mandatory retirement
or SEPARATION during war or emergency.
In time of war, or of emergency declared by Congress or the Presi-
dent, the President may suspend the operation of any provision of law
relating to promotion, or mandatory retirement or separation, of com-
missioned officers of the Regular Air Force. (Aug. 10, 1956, ch. 1041,
70A Stat. 519.)

§ 6386 Suspension : preceding sections

(a) The President may suspend any provision of the preceding sec-
tions of this chapter relating to officers serving in the grades of lieu-
tenant and lieutenant (junior grade) in the Navy, other than women
officers appointed under section 5590 of this title, or relating to male
officers serving in the grades of captain and first lieutenant in the
Marine Corps during any period when —

(1) the number of male officers serving on* active duty in the
grade of ensign and above in the line of the Navy exceeds the
number of male officers on the active list in the line of the Navy ;
and

(2) he determines that the needs of the service so require.

(b) Officers in the following categories are not counted as officers
serving on active duty for theipurpose of clause (1) of subsection (a) :

( 1 ) Retired officers.

(2) Officers of the Naval Reserve assigned to active duty for
training.

(3) Officers of the Naval Reserve ordered to active duty in con-
nection iwith organizing, administering, recruiting, instructing,
training, or drilling the Naval Reserve.

(4) Officers of the Naval Reserve ordered to temporary active
duty to prosecute special work.

(c) During a war or national emergency, the President may sus-
pend any provision of the preceding sections of this chapter. Such a
suspension may not continue beyond June 30 of the fiscal year follow-
ing that in which the war or national emergency ends. (Aug. 10, 1956,
ch. 1041, 70 A Stat. 408.)

HOUSE DEBATE AND ADOPTION OF H.R. 3884,
94th CONGRESS

[Congressional Record — v. 121, Sept. 4, 1975 — pp. H8325-H8341]

Providing for Consideration of H.R. 3884, National Emergencies

Mr. Delaney. Mr. Speaker, by direction of the Committe on Rules,
I call up House Resolution 524 and ask for its immediate
consideration.

The Clerk read the resolution, as follows :

H. Res. 524

Resolved, That upon the adoption of this resolution it shall be in order to move
that the House resolve itself into the Committee of the Whole House on the
State of the Union for the consideration of the bill (H.R. 3884) to terminate
certain authorities with respect to national emergencies still in effect, and to
provide for orderly implementation and termination of future national emer-
gencies. After general debate, which shall be confined to the bill and shall
continue not to exceed one hour, to be equally divided and controlled by the
chairman and ranking minority member of the Committee on the Judiciary,
the bill shall be read for amendment under the five-minute rule. At the conclu-
sion of the consideration of the bill for amendment, the Committee shall rise
and report the bill to the House with such amendments as may have been
adopted, and the previous question shall be considered as ordered on the bill
and amendments thereto to final passage without intervening motion except one
motion to recommit.

The Speaker. The gentleman from New York (Mr. Delaney) is
recognized for 1 hour.

Mr. Delaney. Mr. Speaker, I yield 30 minutes to the gentleman
from Mississippi (Mr. Lott) pending which I yield myself such time
as I may consume.

(Mi-. Delaney asked and was given permission to revise and extend
his remarks.)

Mr. Delanet. Mr. Speaker. House Resolution 524 makes in order
the consideration of H.R. 3884. It provides for an open rule with
one hour of general debate. The purpose of H.R. 3884 is to terminate
all powers and authorities under any national emergency existing on
the date of enactment as of two years from that date. As to future
emergencies, the bill provides certain procedures, requirements,
powers, and authorities concerning their declaration and termination.

H.R. 3884 authorizes the President to proclaim a national emer-
gency when, in his opinion, such a declaration is necessary, and re-
quires the proclamation to be transmitted to the Congress and pub-
lished in the Federal Register. A national emergency may be
terminated by a concurrent resolution of the Congress.

Mr. Speaker, passage of this bill will have the positive effect of
ending the practice of reconducting governmental activity under the
authority of laws which derive their meaning from emergencies de-
clared years in the past to meet problems and situations which have

(239)

240

long since disappeared or are now drastically changed. I urge the
adoption of House Resolution 524 in order that we may discuss and
debate H.R. 3884.

Mr. Lott. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the gentleman from New York has explained the
provisions of this rule, which allows for the consideration of H.R. 3884,
national emergencies; but I would like to comment briefly on the rule
and the bill at this time also.

This rule, House Resolution 524, provides for the House to resolve
itself into the Committee of the Whole for consideration of
H.R. 3884. After general debate, which shall be confined to the bill
and shall not exceed one hour, the bill shall be read for amendment
under the five-minute rule.

The purpose of this legislation is to terminate certain authorities
with respect to national emergencies still in effect and to provide for
the orderly implementation and termination of future national emer-
gencies. To accomplish this goal the bill includes the following
provisions :

First, terminates all powers and authorities under any national
emergency existing on the date of enactment as of two years from that
date.

Second, authorizes the President to proclaim a national emergency
and requires the proclamation to be transmitted to the Congress and
published in the Federal Register.

Third, provides for termination of such emergencies either by Con-
gress by concurrent resolution or by Presidential proclamation.

Fourth, provides that upon the declaration of the national emer-
gency, the President will be required to specify which emergency
statutes are to be utilized.

Fifth, requires that after the declaration of a national emergency
or declaration of war, the President shall submit to Congress 90 days
after each six-month period a report of total expenditures which are
attributable to powers and authorities exercised under such declara-
tions. A final report is required 90 days after the termination of the
emergency of war.

Sixth, repeals a number of obsolete national emergencies now in
effect, some of which date hack to before "World War II.

Since this bill does not provide for any new programs, no costs are
contemplated or predicted.

Mr. Speaker. I know of no serious objections to this measure : and I
would urge, therefore, the adoption of this rule so that the House may
proceed to consider the legislation.

Mr. Delaney. Mr. Speaker, I move the previous question on the
resolution.

The previous question was ordered.

The Speaker. The question is on the resolution.

The question was taken : and the Speaker announced that the ayes
appeared to have it.

Mr. Charles H. Wilson of California. Mr. Speaker, I object to the
vote on the ground that a quorum is not present and make the point of
order that a quorum is not present.

The Speaker. Evidently a quorum is not present.

The Senreant at Arms will notify absent Members.

241

The vote was taken by electronic device, and there were — yeas 382,
nays 0, answered "present'' 2, not voting 49, as follows :

Abzug

Adams

Addabbo

Alexander

Anibro

Anderson, Calif.

Anderson, 111.

Andrews, N. Dak.

Annunzio

Archer

Armstrong

Ashbrook

Ashley

Aspin

AuCoin

Badillo

Bafalis

Baldus

Barrett

Baucus

Bauman

Beard, R.I.

Beard, Tenn.

Bedell

Bell

Bennett

Bergland

Bevill

Biaggi

Bingham

Blanchard

Blouin

Boggs

Boland

Boiling

Bonker

Bowen

Brademas

Breaux

Breckinridge

Brinkley

Brodhead

Brooks

Broomfield

Brown, Calif.

Brown, Mich.

Brown, Ohio

Broyhill

Buchanan

Burgener

Burke, Calif.

Burke, Mass.

Burleson, Tex.

Burlison, Mo.

Burton, John

Burton, Phillip

Butler

Byron

Carney

Carr

Carter

[Roll Xo. 493]

YEAS— 382

Casey

Cederberg

Chappell

Clancy

Clausen, Don H.

Clawson, Del

Cleveland

Cochran

Cohen

Collins, 111.

Collins, Tex.

Conable

Conlan

Conte

Corman

Cornell

Cotter

Coughlin

Crane

D'Amours

Daniel, Dan

Daniel, R. W.

Daniels, N.J.

Danielson

Davis

de la Garza

Delaney

Dellums

Dent

Derrick

Devine

Dickinson

Dingell

Dodd

Downey, N.Y.

Downing, Va.

Drinan

Duncan, Tenn.

du Pont

Early

Bckhardt

Edgar

Edwards, Ala.

Edwards, Calif.

Eilberg

Emery

English

Erlenborn

Esch

Eshleman

Evans, Colo.

Evans, Ind.

Fascell

Fenwick

Findley

Fish

Fisher

Fithian

Flood

Florio

Flowers

Flynt

Ford, Mich.

Ford, Tenn.

Fountain

Frenzel

Frey

Fuqua

Gaydos

Gibbons

Gilinan

Ginn

Goldwater

Gonzalez

Goodling

Gradison

Grassley

Green

Gude

Guyer

Hagedorn

Hall

Ha miner schmidt

Hanley

Hannaford

Hansen

Harkin

Harrington

Harris

Harsha

Hastings

Hawkins

Hayes, Ind.

Hays, Ohio

Hechler, \V. Va.

Heckler, Mass.

Hefner

Heinz

Helstoski

Henderson

Hicks

Hightower

Hillis

Hinshaw

Holland

Holt

Holtzman

Howe

Hubbard

Hughes

Hutchinson

Hyde

I chord

Jacobs

Jeffords

Jenrette

Johnson, Calif.

Johnson, Colo.

Johnson, Pa.

Jones, Ala.

Jones, N.C.

Jores, Okla.

242

Jones, Tenn.

Murphy, N.Y.

Shipley

Jordan

Murtha

Shriver

Karth

Myers, Ind.

Shuster

Kasten

Myers, Pa.

Sikes

Kastenmeier

Natcher

Simon

Kazen

Neal

Sisk

Kelly

Nichols

Skubitz

Kemp

Nix

Slack

Ketchum

Nolan

Smith, Iowa

Keys

Nowak

Smith, Nebr.

Koch

Oberstar

Snyder

Krebs

Obey

Spellman

Krueger

O'Brien

Spence

LaFalce

O'Hara

Staggers

Lagomarsino

O'Neill

Stanton, J. William

Landrum

Ottinger

Stanton, James V.

Latta

Passman

Stark

Leggett

Patman, Tex.

Steed

Lehman

Patterson, Calif.

Steelman

Lent

Pattison, N.Y.

Steiger, Ariz.

Levitas

Perkins

Steiger, Wis.

Litton

Pettis

Stephens

Lloyd, Calif.

Peyser

Stratton

Lloyd, Tenn.

Pickle

Studds

Long, La.

Pike

Sullivan

Lott

Poage

Symington

Lujan

Pressler

Symms

McCloskey

Preyer

Talcott

McCollister

Price

Taylor, Mo.

McDade

Quie

Taylor, N.C.

McFall

Quillen

Thompson

McKinney

Railsback

Thone

Macdonald

Randall

Thornton

Madden

Regula

Traxler

Madigan

Reuss

Treen

Maguire

Rhodes

Tsongas

Mahon

Richmond

Udall

Mann

Rinaldo

Vander Veen

Martin

Risenhoover

Vanik

Matsunaga

Roberts

Vigorito

Mazzoli

Robinson

Waggonner

Meeds

Rodino

Wampler

Melcher

Rogers

Waxman

Metcalfe

Roncalio

Weaver

Meyner

Rooney

Whalen

Mezvinsky

Rose

White

Michel

Rosenthal

Whitehurst

Mikva

Rostenkowski

Whitten

Milford

Roush

Wiggins

Miller, Calif.

Rousselot

Wilson, Bob

Miller, Ohio

Roybal

Wilson, C. H.

Mineta

Runnels

Wilson, Tex.

Minish

Ruppe

Winn

Mink

Russo

Wirth

Mitchell, Md.

Ryan

Wolff

Mitchell, N.Y.

St Germain

Wright

Moakley

Santini

Wydler

Moffett

Sarasin

Wylie

Mollohan

Sarbanes

Yates

Montgomery

Satterfield

Yatron

Moore

Scheuer

Young, Fla.

Moorhead, Calif.

Sclmeebeli

Young, Ga.

Moorhead, Pa.

Schroeder

Young, Tex.

Morgan

Schulze

Zablocki

Moss

Sebelius

Zeferetti

Motti

Seiberling

Murphy, 111.

Sharp

M os her

243

NAYS—
ANSWERED "PRESENT"— 2
Vander Jagt

NOT VOTING— 49

Abdnor

Hamilton

Andrews, N.C.

Hebert

Biester

Horton

Burke. Fla.

Howard

Chisholm

Hungate

Clay

Jarman

Conyers

Kindness

Derwinski

Long, Md.

Diggs

McClory

Duncan, Oreg.

McCormack

Evans, Tenn.

McDonald

Fary

McEwen

Foley

McHugh

Forsythe

McKay

Fraser

Ma this

Giaimo

Mills

Haley

Nedzi

Patten, N.J.

Pepper

Pritchard

Rangel

Rees

Riegle

Roe

Solarz

Stokes

Stuckey

Teague

Ullman

Van Deerlin

Walsh

Young, Alaska

So the resolution was agreed to.

The Clerk announced the following pairs :

Mr. Hebert with Mr. Fraser

Mrs. Chisholm with Mr. Riegle.

Mr. Giaimo with Mr. Long of Maryland

Mr. Howard with Mr. Foley.

Mr. Patten with Mr. Duncan of Oregon.

Mr. Pepper with Mr. Evans of Tennessee.

Mr. Rangel with Mr. McCormack.

Mr. Teague with Mr. Abdnor.

Mr. Diggs with Mi". Mills.

Mr. Hamilton with Mr. Biester.

Mr. Hungate with Mr. Jarman.

Mr. Clay with Mr. Fary.

Mr. Sruckey with Mr. Burke of Florida.

Mr. Stokes with Mr. Rees.

Mr. Mathis with Mr. Derwinski.

Mr. Conyers with Mr. Andrews of North Carolina.

Mr. Nedzi with Mr. Forsythe.

Mr. Haley with Mr. McKay.

Mr. McHugh with Mr. Horton.

Mr. Solarz with Mr. McDonald of Georgia.

Mr. Van Deerlin with Mr. Kindness.

Mr. Ullman with Mr. McClory.

Mr. Roe with Mr. McEwen.

Mr. Young of Alaska with Mr. Walsh.

The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

National Emergencies

Mr. Flowers. Air. Speaker. I move that the House resolve itself into
the Committee of the Whole House on the State of the Union for the
consideration of the bill (H.R. 388-i). To terminate certain authorities
with respect to national emergencies still in effect, and to provide
for orderly implementation and termination of future national

The motion was agreed to.

244

IN THE COMMITTEE OF THE WHOLE

Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the
bill H.R. 3884, with Mr. Roncalio in the chair.

The Clerk read the title of the bill.

By unanimous consent, the first reading of the bill was dispensed
with.

The Chairman. Under the rule, the gentleman from Alabama
(Mr. Flowers) will be recognized for 30 minutes, and the gentleman
from California (Mr. Moorhcad) will be recognized for 30 minutes.

The Chair recognizes the gentleman from Alabama (Mr. Flowers).

Mr. Flowers. Mr. Chairman, I yield such time as he may consume to
the distinguished chairman of the Committee on the Judiciary, the
gentleman from New Jersey (Mr. Rodino).

Mr. Rodino. Mr. Chairman, I wish to commend the gentleman from
Alabama (Mr. Flowers) as well as the ranking member of the sub-
committee (Mr. Moorhead), for their leadership in the handling of
this legislation which is sorely needed to bring about a termination of
unnecessary emergency powers.

This is a bill which provides for a statutory resolution and definition
concerning the exercise of the powers and authorities in connection
with national emergencies which may occur in the future. By provid-
ing for a termination of powers and authorities relating to existing
emergencies, the bill will make it possible for our Government to
function in accordance with regular and normal provisions of law
rather than through special exceptions and procedures which were
intended to be in effect for limited periods during specific emergency
conditions.

Presently, the national emergency, declared in December of 1950 by
President Truman in connection with the Korean conflict, is in effect.
The even earlier emergency declared by President Roosevelt in March
of 1933 to meet the pressing problems of the Depression has not ac-
tually been terminated. Two other emergencies are still in effect. There
was a national emergency proclaimed on March 23, 1970. because of
a Post Office strike, and again on August 15. 1971, a national emer-
gency was declared to deal with balance of payments and other inter-
national problems. Tt can. therefore, be stated that there has been an
emergency in one form or another for the last 43 years. This bill will
end the practice of conducting governmental activity under authority
of laws which derive force from emergencies declared years in the
past to meet problems and situations which have long since dis-
appeared or are now drastically changed. The continued and almost
routine utilization of such emergency authorities for years after the
original crisis serves to emphasize the fact that there is an urgent
need to provide adequate laws to meet our present-day needs.

Legislation intended for use in crisis situations is bv its nature not
well suited in normal, day-to-day Government operations. It is also
conceivable that the existence of emergency authority has actually dis-
couraged legislative action. Statutory authorization may not have
been sought bv Executive agencies or o-ranted bv the Congress because
of a failure to recognize the need. This bill will provide a basis for a
return to a more rational and normal state of law and will eliminate

245

reliance on unnecessary and undesirable emergency powers without
upsetting routine and essential portions of our present legislative and
administrative structure. In providing procedures to govern future
emergencies, the bill will establish a system which will prevent such
a continuing reliance on emergency statutes from recurring.

The reports received from the departments on the 93d Congress bill,
and testimonv before the Committee indicate support for the provisions
of this bill.

The report of the Committee received from the Department of De-
fense recognized that world conditions and national conditions have
changed since the state of national emergency was declared in 1950.
It recognized the desirability of terminating existing states of emer-
gency and further stated that it has no objection to their termination.
This Department and others have noted that in some areas emergency
authorities had over the years come to be relied upon in the day-to-day
operations and that these continuing needs would have to be met. The
Committee considered the effect of the bill on these functions and con-
cluded that the two-year period fixed in the amended bill would pro-
vide the Congress with a reasonable opportunity to consider permanent
legislation to replace the authority provided under the specific emer-
gency provisions that provide statutory authority for such day-to-day
functions. This period for orderly transition should preclude any un-
due dispution in Government operations.

The report received from the Department of the Treasury on No-
vember 1± 1974. was considered by the Committee with particular ref-
erence to emergency powers. That report stated the position of that
department concerning the authority providing for regulation during
emergencies of banking transactions, gold and silver activities, transac-
tions in foreign exchange, and the exercise of rights in property sub-
ject to American jurisdiction in which foreign nationals have an
interest.

Some of these matters are of current significance and: therefore, the
bill as reported by the Committee contains the exception in section
502(a) (1) concerning section 5(b) of the act of October 6, 1917, the
Trading With the Enemy Act.

Title 1 of the bill provides that after two years, all powers and au-
thorities sed by the President or other officer or employee of the
Federal Government, based upon any declaration of national emer-
gency in effect on the date of enactment will be terminated. The provi-
sions of title 1 terminating powers and authorities possessed by the
Executive as the result of any prior declaration of national emergency
are a basic part of the bill. It is recognized that an immediate termina-
tion without a period for transition in adjustment could, to a degree,
disrupt the functioning parts of our Government. After study and con-
sideration, the Congress may or may not wish to change some of these
practices and procedures ba^ed upon the emergency statutes. The bill
meets this problem in two ways: First, a limited number of powers
and authorities which have been identified as necessary on a continuing
basis are exempted from termination by section 502 of the amended
bill. Second, as T have indicated above, the termination date of all other
powers and authorities i- set at two years from date of enactment. This
will also serve to <rive Government departments and agencies a period
in which to identify and brin<r to the attention of the Congress provi-

246

sions which in their estimation merit legislative consideration. The
definite time limit fixed in the bill will require that the agencies take
prompt action to review their legislative authority and make prompt
recommendations to the Congress for any needed action. After the two-
year period, the Government agencies should be freed from a depend-
ence on emergencies authority and Government operation will proceed
on the basis of procedures under permanent law and under new enact-
ments drafted to meet current needs and operations.

Any emergency declared after the date of enactment of this legisla-
tion would not be terminated by title I. but would instead be governed
by the limiting scheme created by title II. By definition, title I would
affect those statutes whose conferral of powers is expressly conditioned
upon a Presidential declaration of national emergency. This is pro-
vided in section 101(b), which defines "any national emergency in
effect'' to mean only "a general declaration of emergency made by the
President."' Accordingly, laws like the I>fense Production Act of
1950, which do not require a Presidential declaration of emergency for
their use, are not affected by this title — even though they may be
referred to in a general sense as "emergency" statutes.

Section 201 concerns Presidential proclamations of a national emer-
gency and authorizes such proclamations upon a finding that it is
essential to the preservation, protection, and defense of the Constitu-
tion or to the common defense, safety or well-being of the territory or
people of the United States. This language of section 201(a) is not
intended to grant any additional authority to the President. Rather it
indicates the general nature of the circumstances in which a declara-
tion might be issued. Subsection (b) limits the effectiveness of provi-
sions of law to be exercised during a national emergency to periods
when a President's declaration of national emergency is in effect and
then only in accordance with the balance of the provisions of the bill.
This latter provision has particular reference to the provisions of
section 301 which requires that the President specify the provisions of
law he will utilize or under which other officers of the Government
will act. Subsection (b) also contains a provision stating that no sub-
sequent enactment will supersede the title unless it doe? so in specific
terms declaring that the new law supersedes the provisions of this
title.

Section 202(a) provides for the termination of national emergencies
declared by the President in accordance with title II of the bill. They
would be terminated by concurrent resolution of the Congress or by a
proclamation by the President. The subsection contains an additional
requirement that at the end of each year following the declaration of
an emergency which is still in effect, the President shall publish in the
Federal Regisia r and transmit to the Congress a notice stating that
the emergency is still in effect. This title of the bill provides, for the
first time, explicit provision for the President to make the declaration

247

of national emergency which certain statutes require. This clarifies an
existing problem as to emergency statutes. At present, this power can
only be implied with respect to some statutes. When the act takes
effect, emergency provisions will only be implemented by the President
in accordance with the terms of title II and title III of the amended
bill.

In providing for the termination of emergency powers as well as
their commencement, the bill makes an important change in the law.
The absence of such statutory requirements and procedures in the past
has resulted in the failure to terminate emergency powers and this
in turn has given rise to the present situation. Under present law.
which does not contain explicit termination provisions, proposals for
the use of emergency power often generate discussion as to whether
existing emergencies have lapsed or grown stale due to passage of time
and change of circumtances. Section 202 of the present bill will elim-
inate all uncertainty on that point, since it sets forth the prescribed
means of termination and also requires the continuing existence of a
state of emergency to be formally recorded each year.

Subsections (b) and (c), of section 202 provide for procedures
which will govern the consideration of the Congress of a concurrent
resolution which would terminate a national emergency. These pro-
visions are verv similar to those set forth in section 7 of Public Law
93-148. the War Powers Act. of Xovember 7, 1973.

Section 301 of the amended bill contains the provision referred to
above providing that powers and authorities made available by statute
for use during national emergencies are effective after a declaration
of national emergency only after the President specifies the specific
provisions of such laws which will be utilized. Under existing law,
such a declaration would have the effect of reviving many emergency
provisions throughout the United States Code, whether or not they
are relevant to the emergency at hand. In many cases, the provisions
are not self-executing so that their mere availability does not bring
them into force without specific implementing directives. In other
cases, however, changes in law automatically take effect during times
of national emergency. Section 301 of the amended bill would change
this by establishing that no provision of law shall be triggered by a
declaration of national emergency unless and until the President spec-
ifies that provision as one of those under which he or other officers
will act. The specification may be made either in the declaration of
national emergency or in subsequent Executive orders. This will
enable the Executive to choose specific provisions needed to deal with
the emergency at hand; and it will put Congress and the public on
notice as to precisely what laws are going to be invoked.

Section 401 of the amended bill details the accountability and re-
porting requirements applicable to the President in connection with
national emergencies, All significant orders of the President shall
be filed and an index maintained of that file. Further, each Executive
agencv is to mandate a file and an index of all rules and regulations
issued during an emergency of war. These orders, rules, and regulations
are to be transmitted to the Congress. Subsection (c) requires that the
President transmit to the Congress within 90 days of the end of each
six-month period after declaration of a national emergency or deelara-

66-474 O - 76 - 17

248

tion of war a report of the total expenditures of the Government at-
tributable to the exercise of powers and authorities brought into force
by the declaration. A final report of all such expenditures is required
within 90 days of the termination of the war or the emergency.

As has been discussed, a basic problem with emergency legislation
derives from the fact that by continued and customary use the author-
ity has become the basis for current Government activity. Simply to
abolish all emergency powers and dispositions on a specified date would
not actually solve this problem but would ignore that in some instances
this authority is vital to some governmental functions. For years, this
Committee has been concerned with the identification of emergency
statutes and their utilization.

On January 25, 1962, the Committee issued a committee print identi-
fying such laAvs. More recently, the effort which the Executive and
Legislative branches have devoted to this bill and earlier bills in the
past several years has also been directed toward identifying those
powers and dispositions which should be preserved while the rest are
abandoned. As is provided in section 502(b) , it is intended that within
a reasonably short time those provisions of law can be converted from
the "emergency" portions of the code in which they now appear to
standard, nonemergency sections. Until that is achieved, however, the
technical conditions which enable them to remain effective must be
preserved. This is achieved in section 502 of the amended bill by pre-
serving the effect of previously issued declarations of national emer-
gency only with respect to those eight specified provisions.

As stated in the committee report, the facts developed in the hear-
ings on the bill demonstrate the need for legislative action. The
testimony by representatives of departments in connection with this
subject, and the reports received from those departments that the time
has come for positive and constructive legislative action in the manner
provided for in the bill. It is recommended that the amended bill be
considered favorably.

Mr. Flowers. Mr. Chairman, I yield myself such time as I may
consume.

Mr. Chairman, I thank the distinguished chairman for his com-
ments, and I might also thank him for his leadership in insisting that
this matter receive early attention. It was not by way of twisting
my arm, because we were agreeable to every aspect of this legislation,
but in our early planning the gentleman insisted that this matter re-
ceive early attention and that is exactly what we have given it.

Mr. Chairman, the purpose of the bill is to terminate all powers
and authorities under any national emergency existing on the date
of enactment as of two years from that date.

249

war or national emergency, and that such orders and rules and reg-
ulations be transmitted to the Congress. A report of all expenditures
directly attributable to the exercise of powers and authorities under
a declaration of national emergency would have to be transmitted to
the Congress within 90 days after each six-month period under the
declaration.

The bill provides for statutory resolution and definition concern-
ing the exercise of the powers and authorities in connection with na-
tional emergencies which may occur in the future. By providing for
a termination of powers and authorities relating to existing emergen-
cies, the bill will make it possible for our Government to function in
accordance with regular and normal provisions of law rather than
through special exceptions and procedures which were intended to be
in effect for limited periods during specific emergency conditions.

Presently, the national emergency declared in December of 1950
by President Truman in connection with the Korean conflict is in
effect. The even earlier emergency declared by President Roosevelt in
March of 1933 to meet the pressing problems of the depression has not
actually been terminated. Two other emergencies are still in effect.
There was a national emergency proclaimed on March 23. 1970. be-
cause of a Post Office strike, and again on August 15, 1971, a national
emergency was declared to deal with balance of payments and other
international problems. It can. therefore, be stated that there has lie en
an emergency in one form or another for the last 43 years. This bill
would end the practice of conducting governmental activity under
authority of laws which derive force from emergencies declared years
in the past to meet problems and situations which have long since dis-
appeared or are now drastically changed. In providing procedures to
govern future emergencies, the bill will establish a system which will
prevent such a continuing reliance on emergency statutes from recur-
ring.

Prior to the consideration of legislation in the Senate, the Senate
Special Committee on the Termination of the National Emergency
conducted a two-year study on the problems, application and scope of
emergency statutes. The bill S. 3957, which passed the Senate late
in the last Congress, was to a huge degree a product of the work of
that special committee. The present bill. H.P. 3884, incorporates the
basic provisions of the earlier bill, S. 3957. as it was finally passed by
the Senate and referred to this Committee in the 93d Congress.

It is recognized that an immediate termination without a period
for transition and adjustment conld undo and confuse many opera-
tions which are necessary and functioning parts of our Government.
After study and consideration, the Congress may or may not wish to
change some of these practices and procedures based upon the emer-
gency statutes. The bill meets this problem in two ways : First, a limited
number of powers and authorities which have been identified as nec-
essary on a continuing basis are exempted from termination by sec-
tion 502 of the amended bill. Second, as discussed above, the termina-

250

tion date for all other powers and authorities is set at two years from
date of enactment. This will also serve to give Government depart-
ments and agencies a period in which to identify and bring to the
attention of the Congress provisions which in their estimation merit
legislative consideration.

Subsections (b) and (c) of section 202 provide for procedures which
will govern the consideration of the Congress of a concurrent resolu-
tion which would terminate a national emergency. These provisions are
very similiar to those set forth in section 7 of Public Law 93-148, the
War Powers Act, of November 7, 1973.

The committee has concluded that the facts developed in the hear-
ings on the bill and as outlined in the committee report demonstrate
the need for legislative action. The testimony by representatives of
departments in connection with this subject, and the reports received
from those departments have shown that there is general agreement
that the time has come for positive and constructive legislative ac-
tion in the manner provided for in this bill. It is recommended that
the amended bill be considered favorably.

Mr. Mazzoli. Mr. Chairman, will the gentleman yield ?

Mr. Flowers. I yield to the gentleman from Kentucky.

Mr. Mazzoli. Mr. Chairman, I thank the gentleman for yielding.

The bill before us is a product of two years work by the Senate
Special Committee on National Emergencies, extensive Senate debate
in the 93d Congress, and thorough hearings this year conducted by the
Subcommittee on Administrative Law and Governmental Relations
chaired by my distinguished colleague, the gentleman from Alabama
(Mr. Flowers).

The process of study and debate has produced a bill establishing
a sound approach for terminating previously declared — and currently
existing — states of national emergency; providing for an orderly
transition from emergency status to nonemergency status; and reg-
ulating the declaration of future states of national emergency.

If Congress is to take a serious and fundamental role in conducting
the affairs of our Government, it must act to define and curtail the
plenary powers possessed by the Executive branch under authority of
the existing national emergencies.

Four states of declared national emergency are still in existence
today in 1975.

First. President Roosevelt's declared national emergency of 1933
to deal with the Great Depression.

Second. President Truman's declared national emergency of 1950
to deal with the Korean War.

Third. President Nixon's declared national emergency of 1970 to
deal with the Post Office strike.

Fourth. President Nixon's declared national emergency of 1971 to
deal with the Balance of Payments Crisis.

These emergencies have given the United States a total of 41 years of
emergency government, and have nurtured an Executive branch that

251

draws many of its powers from the 470 emergency statutes uncovered
by the Senate Special Committee on National Emergencies during its
study.

Despite the fact that these emergency circumstances have ended,
the Executive branch's day-to-day operations rely, in all too many
instances on emergency powers. Important matters, such as the regula-
tion of international trade, and routine matters such as leases of prop-
erty by the General Services Administration are based on emergency
authority.

To prevent disruptions in the day-to-day Executive branch func-
tions, H.E. 3884 would not terminate the existing emergencies until
two years after enactment.

Further, certain specific emergency powers would be exempted from
the bill's effects with appropriate Congressional committees mandated
to review these laws and report, their findings to the Congress within
270 days.

Congress could retain the emergency grants of power to the Presi-
dent, revise them, or abolish them totally as it decided.

H.R. 3884 also would delineate a specific role for Congress in the
declaration and conduct of future national emergencies.

This bill would require that the President's declaration of a national
emergency must specify the emergency provisions of law under which
he and his agents wish to operate.

The President and all Executive agencies must report periodically
to the Congress on the use of these powers, the orders issued under
the authority of the national emergency and the expenditures made
in pursuance of these authorities.

At any time in this process. Congress could enact a concurrent
resolution terminating the emergency. Every six months after declara-
tion of a national emergency this bill requires that the Congress
consider such a resolution of termination.

The provisions of the bill relating to the termination of future
emergencies are worth a comment.

They require that Congress take specific action to enact a concur-
rent resolution to terminate an emergency. Thus, since a declared
national emergency does not expire at the end of a certain time. Con-
gress of necessity must publicly debate and definitely settle the issue
of the existence or nonexistence of a national emergency.

Then by adopting H.R. 3884, we are consciously and deliberately
forcing ourselves to come to grips periodically — and ultimately —
with the vexing problems of national emergencies. The blame as well
as the glory will be on the shoulders of the Congress in the years
ahead. But that is as it is supposed to be — that is the responsible
course to take.

The courts have long recognized the need for Congressional over-
sight of the emergency powers of the Presidency. In the Supreme
Court's decision prohibiting President Truman's 1952 takeover of
the steel mills. Justice Jackson wrote for the majority that —

The President's power must stem from either an act of Congress or the
Constitution itself . . . Emergency powers are consistent with free government
only when their control is lodged elsewhere than in the Executive who exercises
them ... In the practical working of our Government we . . . have evolved
a technique within the framework of the Constitution by which normal Executive

252

powers may be considerably expanded to meet an emergency. Congress may and
has granted extraordinary authorities which lie dormant in normal times but
may be called into play by the Executive in war or upon proclamation of a
national emergency.

In the granting of those "extraordinary authorities" it is the re-
sponsibility of the Congress to see that the powers are properly used
and that they do "lie dormant in normal times."

I support this bill and recommend that it be enacted as reported by
the distinguished Committee on the Judiciary.

Mr. Flowers. Mr. Chairman, I certainly appreciate the comments
of the gentleman from Kentucky (Mr. Mazzoli), and I wish to thank
him for his effective work on the subcommittee in this matter as well
as with respect to other proposals.

I also wish to thank the other members of the subcommittee, includ-
ing the minority members headed by the gentleman from California
(Mr. Moorhead), who have contributed greatly to this legislation.

Mr. Moorhead of California. Mr. Chairman, I yield such time as
he may consume to the ranking member of the Committee on the
Judiciary, the gentleman from Michigan (Mr. Hutchinson).

Mr. Hutchinson. Mr. Chairman, I rise in strong support of this
needed, long overdue legislation. The "National Emergencies Act" is
an appropriate and prudent response to an important policy question
currently facing Congress. That is, how 7 extensive should be the powers
granted to the President in a time of national emergency and, further,
how should the exercise of these special powers be overseen and
controlled ?

As my colleagues in the House can ascertain from the content of
this debate, we are in the anomalous situation of having been in a
continuous state of national emergency since 1933. In fact, there are
still in force four different national emergencies, the justification
for which has now passed. What this means is the President of the
United States has had a legal right to exercise sweeping, extracon-
stitutional powers for the last 40 years. Included among these broad
powers are : the right to seize property and certain commodities ; the
right to control all modes of transportation ; the right to call up the
Ready Reserves; and the right to extensively regulate various aspects
of private enterprise.

This measure seeks to remedy the fact that no statutory framework
now exists to guide the conduct of our Government during a period
of national emergency. Importantly, H.R. 3884 would establish stand-
ards and guidelines for the future declaration and termination of
national emergencies. Two years from the date of its enactment all
the power and authority that the President could exercise pursuant
to the four existing national emergencies, would be discontinued. Title
IV of the bill sets up a reporting system, so that Congress will be
regularly informed concerning the conduct of a national emergency.
Through section 202 of the bill, Congress can act as a check on the
possible arbitrary or unnecessary use of emergency powers, by termi-
nating the national emergency on its own by passing a concurrent
resolution.

As a firm believer in a strong Presidency and Executive flexibility,
I could not support this bill if it would impair any of the rightful
constitutional powers of the President. It will have no impact on his

253

flexibility to declare a national emergency and to quickly respond if
the necessity arises. The bill has no impact on the powers of the Presi-
dent in time of war. Rather, what it seeks to assure is that the rule of
law prevails in a national emergency situation and that it cannot be
bypassed, merely because we find ourselves in a state of national
emergency.

H.R. 3884 is very similar to legislation (S. 3957) which unanimously
passed the Senate near the end of the 93d Congress. It represents over
two years of study and work, first by the Special Committee on the
Termination of the National Emergency of the Senate, and, more
recently, by the Subcommittee on Administrative Law and Govern-
mental Relations of the House Judiciary Committee. Both groups are
to be commended for their thorough and thoughtful review of the
problem.

The Ford Administration is on record as supporting this legisla-
tion — both its philosophy and effect. However, the Administration has
expressed reservations about one provision, that which would permit
Congress to unilaterally end the existence of a national emergency by
the enactment of a concurrent resolution. Otherwise, H.R. 3884 is
acceptable to them. In fact. Administration officials were involved in
drafting portions of the bill and their thoughts and views were con-
tinuously sought out during different stages of the legislative process.
For example, the list of exempted statutes in title V were included at
the request of the Administration, to insure that the bill will not dis-
rupt any essential governmental functions.

In summary, this legislation is an effort at assuring that the exercise
of emergency powers are confined to actual periods of national emer-
gency and that Congress has a role in overseeing the conduct of na-
tional emergencies. I recommend the favorable action of the House
on this matter.

Mr. Moorhead of California. Mr. Chairman, I yield myself such
time as I may consume.

Mr. Chairman. I rise in support of H.R. 3884 — the "National Emer-
gencies Act." This legislation proposes to do away with the irrational
and potentially dangerous practice of "government-by-emergency."
In its place would be substituted a regularized machinery for the
future declaration and termination of national emergencies.

This measure was prompted by the findings of a two year study con-
ducted by the Special Committee on the Termination of the National
Emergency of the U.S. Senate, cochaired by Senator Charles McC.
Mathias and Senator Frank Church. What they discovered was that
not one. but four, national emergencies are still in effect. These are:
first, the "Bank Holiday" emergency declared by President Roosevelt
in the midst of the Depression on March 6. 1933: second, the Korean
War emergencv. declared by President Truman on December 16. 1050;
third, the national emergency declared on March 23. 1970. by Presi-
dent Nixon to deal with the postal strike : and fourth, a national
emergency to deal with international balance of payments and cur-
rency problems, also declared by President Nixon on August 15, 1971.

The continuing existence of these emergencies is not merely a histori-
cal anachronism. Rather, the state of being in a national emergency
triggers into effect over 470 different statutes, some of which grant
the President extraconstitutional powers. These powers were, of

254

course, intended to assist him in dealing with a genuine emergency
situation and not the everyday operation of Government.

When testifying before the Subcommittee on Administrative Law
and Governmental Relations of the House Judiciary Committee, on
H.R. 3884, earlier this year. Assistant Attorney General Antonin
Scalia stated :

Since the purpose of such emergency laws is to confer upon the Government
extraordinary authority which in normal times it would not have, one must
assume that undue prolongation of states of emergency has the effect of creat-
ing or perpetuating powers which neither the Congress nor the President would
think desirable.

So. the situation with which we have lived too long is, at best, cum-
bersome and inefficient. At worst, it could allow for actions wholly
inconsistent with our form of Government.

It is interesting to note that, during the Second World War when
the very existence of Britain was being challenged, and the possibility
of invasion was imminent, Parliament took the precaution of extend-
ing that wartime emergency — along with the accompanying powers,
delegated to the Government's Ministers — for only 30 days at a time.
Faithfully, every 30 days. Parliament undertook to review and extend
the emergency bill for still another 30 days.

The caution of the British Parliament certainly stands in stark
contrast to the tendencies of the Congress in recent decades. Con-
gress would do well to learn from our British counterparts for we
have gone in the opposite direction, conferring any number of emer-
gency powers on the Executive, in an open-ended fashion, without
any supervision or control.

There has been a great deal of talk about "oversight" in this House
in the recent weeks and months. The legislation we consider today is
an effort at genuine Congressional oversight. H.R. 3884 would estab-
lish an orderly procedure for the handling of national emergency sit-
uations. As I have indicated no such statutory framework now exists.
Under H.R. 3884, Congress would assume the major role of reviewing
and overseeing the conduct of the Executive branch in a national emer-
gency situation. Most important, under its provisions, Congress would
have the power to unilaterally terminate a national emergency should
the facts warrant it.

Specifically. H.R. 3884 would accomplish the following :

First. Terminate all "powers and authorities" that could be exer-
cised pursuant to the four existing national emergencies two years
from the date of enactment. The rationale for a two-year grace period
is that it allows those departments and agencies, currently relying on
emergency-based authorities to perform everyday functions, to seek
alternative authority ;

Second. Establish a procedure for the declaration of future na-
tional emergencies and provide for their termination by either the
Congress or the President ;

Third. Require that, after declaring a national emergency, the Pres-
ident specify which emergency powers statutes he intends to utilize to
deal with the situation ;

Fourth. Impose reporting requirements on the President and the
entire Executive branch, so that Congress will be advised regarding

255

' significant actions taken and funds expended in connection with an
: emergency ; and

Fifth. 'Repeal outright seven emergency-based statutes that are
either obsolete or viewed as unnecessary. Also it would exempt eight
statutes from the provisions of H.R. 3884, which are seen as essential
to certain on-going functions of the Federal Government. It was felt
that any interruption of their authority would cause serious prob-
lems. The remaining emergency powers statutes would stay on the
books, but be placed in a suspended status. They would be available
for use during a future national emergency, if those specific powers
are deemed necessary by the President.

It is worth noting that among the exempted statutes are provisions
contained in Title 10 of the United States Code dealing with manda-
tory separation and retirement from military service.

The exemption of these provisions prevents a premature and inad-
vertent separation from the military of those men classified as POWs
or MIA's in Southeast Asia. Clearly, a determination regarding the
status of these brave young men should not be made indirectly, in the
context of legislation dealing with Presidential emergency powers.
Rather, that is a decision that ought to be made on its own facts, by
the President and the Department of Defense.

Another exempted law of considerable note is the so-called ''Trad-
ing With the Enemy Act." which dates back to 1917. Originally de-
signed to give the President the power to control commerce with
countries with whom the United States was then at war. this authority
was later expanded to include controls over certain domestic financial
transactions. Since then, for example, this statute has been utilized as
the authority for freezing the assets of nationals of enemy or occu-
pied countries ; for the imposition of consumer credit controls ; and for
establishing a foreign direct investment program. The case for its re-
tention was effectively made by witnesses from the Treasury and De-
partment of State, testifying before our subcommittee.

In conclusion, Mr. Chairman. I would stress that the formulation
and drafting of this legislation has been a genuinely bipartisan effort.
The Ford Administration and Republican Members in both the House
and Senate have been extensively involved in the work product you
see before you. The Ford Administration is on record as supporting
the establishment of statutory controls declaring and terminating na-
tional emergencies. I urge my colleagues to vote favorablv on H.R.
3884.

Mr. Chairman, I hope this legislation will be passed by this Con-
gress without any devastating effects from amendments that are not
carefully thought out in advance. The Committee has carefully gone
over this legislation and has tried to work it out to perfection. So I
hope that there will be only minor changes made to the legislation, if
any are necessary.

Mr. Roisselot. Mr. Chairman, will the gentleman yield?

Mr. Mooriiead of California. Yes, I yield to the distinguished gen-
tleman from California.

Mr. RorssELOT. Mr. Chairman, I appreciate my colleague vielding
to me.

256

I wish to compliment the Committee and my colleagues, the gentle-
man from California (Mr. Moorhead), especially, who I know has
been avidly proposing these changes in such wide, broad emergency
powers delegated to the President and the Executive branch for some
time.

I know that my colleague, the gentleman from California (Mr.
Moorhead), has been, along with many other members of the Com-
mittee on the Judiciary, anxious to change this so as to reassert con-
gressional participation in the deliberations relating to national emer-
gencies, and I wish to compliment my colleague, the gentleman from
California, for his effort in this direction, along with the chairman
of the committee and the other members of the Committee on the
Judiciary.

Mr. Chairman, I rise in support of H.R. 3884, legislation which
would terminate the powers and authorities of the President and
other Federal officials which are presently being derived from emer-
gency declarations. This legislation provides that these declarations
of national emergencies currently in effect terminate two years after
the date of enactment of this bill. However, as originally introduced,
H.R. 3884 provided that the termination would take place one year
after the date of enactment, and I would have preferred that the one-
year termination date be retained.

In my opinion, it is intolerable that Presidential emergency powers
derived from a 1933 declaration by President Roosevelt concerning
the problems of the depression, a 1950 declaration by President Tru-
man in connection with the Korean conflict, a 1970 declaration be-
cause of the Post Office strike, and a 1971 declaration dealing with the
balance-of-payments problem are still essentially in effect. The use
of broad emergency powers by the Executive which include the right
to seize property, take over transportation, institute martial laws, and
indeed assume control of all aspects of private enterprise must be
stopped.

This legislation provides a new mechanism to give Congress the
ability to oversee the use of these powers, to take action to terminate
an emergency proclamation, and to determine if an emergency situ-
ation actually exists.

As elected Representatives of the people, I believe that we have the
responsibility to guard against the taking of what essentially could be
basic constitutional rights, and to also protect the Nation in times of
a legitimate state of emergency. This is an important role which Con-
gress must assume, and H.R. 3884 is a step in the right direction.

Mr. Skubitz. Mr. Chairman, will the gentleman yield?

Mr. Moorhead of California. Yes, I yield to the gentleman from
Kansas.

Mr. Skubitz. Mr. Chairman, I want to commend the Committee on
the Judiciary for bringing this bill before us today. The statute books
are cluttered with laws passed to meet a specific problem — only to
remain on the books after the problem has long disappeared. Agencies
of Government have learned to rely on old statutes to do their bid-
ding — giving these statutes interpretation that were never dreamed
of when the bills were enacted into law. Too often, such statutes are
interpreted to give an agency authority to act when requested for new
authority would be looked upon with a jaundiced eye.

257

The bill is the first step toward the elimination of emergency pow-
er.-. I hope the Committee will consider the repeal of other type leg-
! islation that has been in the books 60, 70 years — 100 years ago — never
used or amended but a tool that might be called on to meet new prob-
lems. The voice of the dead should not direct the steps of the living.

I think that this is a piece of legislation long overdue.

Mr. Flowers. Mr. Chairman, I yield 5 minutes to the gentleman
from Massachusetts (Mr. Drinan).

Mr. Drinan. Mr. Chairman, and members of the Committee, I
commend the subcommittee on clarifying this jungle of law where for
40 years the American people have lived under the shadow of laws that
never should have been enacted or at least should have been repealed.

I wish to point out, however, two deficiencies, the subject of which I
will propose to cover in amendments at the appropriate time.

Mr. Chairman, it seems to me that the problem of declaring a na-
tional emergency is very analogous to what this Congress did in the
War Powers Resolution Act of 1973. In that act. as is well known,
Congress reviewed the Presidential powers and the Congressional
powers and brought about a relatively happy marriage of those two
powers.

The declaration of a national emergency, it seems to me, confers
upon the President powers that are awesome and potentially danger-
ous, similar to the President's exercise of the war powers. Conse-
quently. I do not think that this legislation as presently proposed
should allow the President to unilaterally declare a national emer-
gency whenever he decides that it is essential to do so. I think that we
should follow the example of the War Powers .Vet and insist that the
President consult, whenever possible, with the Congress before the
enactment of the proclamation of emergency, and at every moment
thereafter.

Second, I do not think that we should allow the President to pro-
claim an emergency and then have the burden placed upon the Con-
gress to terminate that emergency. That is precisely what this bill does
and. in my judgment, that is a defect.

Once again, that is a sharp contrast with the war powers resolution
which provides for automatic termination of the use of American
forces unless Congress acts affirmatively to approve an extension.

Mr. Chairman, in an amendment that I shall propose at the appro-
priate time. T will urge the Congress to adopt an amendment to this
very necessary bill that would provide that the emergency proclaimed
by the President automatically be terminated within 30 days unless
the Congress affirmatively seeks to extend the emergency.

It is very significant to note in the testimony taken by the subcom-
mittee that Senator Church said that was the original intent of the
authors of this bill in the Senate. As it came out of the Special Commit-
tee, Senator Church and others felt that the Congress should not have
the burden ; that this emergency power should terminate automatically
within 30 or 00 clays unless the Congress affirmatively renews that
power.

On page 30 of the hearing conducted by the subcommittee. Senator
Church states:

Why was the change made? The change was made because the Pentagon and
the Administration did not want this automatic termination of their powers.

258

Now in the bill we have this very, very serious deficiency that per-
mits the emergency to go on and on unless by a joint resolution of the
Congress it is terminated. I think that is a basic deficiency. I think
that it will aggravate the problem. It will continue the problem that
is sought to be eliminated by this particular bill. After all, Mr. Chair-
man, an emergency is by definition a short-term affair. We should not
allow the President to declare an emergency and then allow that
emergency to go on and on unless someone has the initiative in both
Houses of Congress to terminate it.

The President after the 30 days proposed in my amendment may
once again proclaim the emergency, or Congress can extend the emer-
gency. But in no wise should we have a very loose power residing in
the President by which he can declare an emergency and this state of
emergency will continue on and on until both Houses of Congress
terminate it.

In conclusion, I commend the subcommittee once again but state that
that we have been relatively fortunate over the past 40 years not to
have had abuses of this vast power that has been given to the President
by the Congress. We have been very fortunate. Yet we recognized in
the War Powers Act that we must very severely limit the power of
the President to declare war, and I suggest that by amendments that
I shall propose we will make this present piece of legislation as tight
and as important and as protective of the rights of the Congress as
it should be.

The Chairmax. The time of the gentleman has expired.

Mr. Moorhead of California. Mr. Chairman, I yield such time as he
may consume to the gentleman from Ohio (Mr. Ashbrook).

Mr. Ashbrook. Mr. Chairman, I rise in support of H.R. 3884. This
legislation would — with certain specified exceptions — terminate all
powers and authorities resulting from previously declared national
emergencies. It would also establish procedures for the declaration,
exercise of powers, and termination of future national emergencies.

H.R. 3884 is certainly needed. Once declared, national emergencies
seem to have a way of staying on the books. The Korean War emer-
gency declared by President Truman, for example, is still in effect. So
also is the 1933 declaration of President Roosevelt.

It is time to finally bring these national emergencies to an end. Out-
dated emergencies should not serve as the legal basis for new govern-
mental actions. The potential for abuse is too great. The Government
should operate through normal statutory procedures, not by emer-
gency procedures which were designated for limited periods of time.

H.R. 3884 would halt this practice. No longer could a declaration
of national emergency be used to justify Government activity 20 to 40
years after the crisis has passed.

Not only would it repeal past national emergencies, it would estab-
lish procedures on the declaration and termination of future emergen-
cies. This would prevent reliance on long-passed emergencies from
recurring in the years ahead.

I urge the adoption of H.R. 3884. Government action on the basis
of outdated national emergencies should be brought to a halt.

Mr. Anderson of Illinois. Mr. Chairman, this Congress has often
been chided for tacking the word "emergency" onto the title of nearly
every major bill we have considered this year. A visitor to our gal-

259

! leries might be led to conclude that this is the emergency room of a
hospital instead of the House Chamber.

Although H.R. 3884 also contains the word "emergencies." being
entitled the "National Emergencies Act.*' I think it is significant to
note that for once we are not declaring yet another emergency, but
instead are attempting to terminate some past emergencies, one of
which dates back some 42 years.

As if we did not have enough contemporary problems, crises and
emergencies to worry about, this country is still living under four
declared states of national emergency including the Roosevelt depres-
sion emergency proclamation of 1933, the Truman Korean emergency
proclamation of 1950. and the Nixon postal and economic emergency
proclamations of 1970 and 1971 respectively. In addition, we know
from the work of the Senate Special Committee on the Termination
of National Emergency in the last Congress that there are some 470
existing emergency statutes on the books. According to the Senate
committee, these remain "a potential source of virtually unlimited
power for a President should he choose to activate them." These poten-
tial powers conferred upon the President include the right to seize
property, organize and control the means of production, seize com-
modities, assign military forces abroad, call reserve forces amounting
to 2.5 million men to duty, institute martial law, seize and control all
means of transportation, regulate all private enterprise, and restrict
travel.

The chairman and ranking Republican on the Special Senate Com-
mittee, Senators Church and Mathias, issued a joint statement in Sep-
tember of 1973 underscoring the inherent dangers in this vast array
of standby emergency authority granted to the President. In their
words :

We cannot stress enough the warning contained in this catalog of emergency
power statutes. The evident pattern in this accretion of power over a 40-year
period is. in our view, symptomatic of what has occurred in law-making in all
areas of our government.

Tney went on to say. and I again quote :

Unless Congress takes steps to strengthen its capacity to write the laws
through the representative political process as the Constitution intended, then
the unmistakable drift towards one-man government will continue.

Mr. Chairman. I think it is important to observe that that statement
was issued prior to the release of the so-called White House Water-
gate transcripts and their chilling revelations about the abuse of Presi-
dential power.

The 93d Congress, to its credit, made immense strides in the reasser-
tion of Congressional prerogatives through the enactment of the budget
reform and war powers acts as well as the responsible excercise of its
impeachment powers. The torch has now passed to this new Congress
to continue the momentum in checking the potential abuse of Presi-
dential powers and reestablishing the delicate balance of powers be-
tween the great branches of our Government.

Although the Senate last year passed a bill similar to this termi-
nating national emergencies, time ran out before the House could
complete action on the measure. I want to commend our Judiciary
Committee, which distinguished itself in the last Congress, for making
this legislation a priority item in this session.

260

One of the main complaints of the Church committee was the irre-
sponsible approach the Congress has taken to past emergency legisla-
tion. As Senators Church and Mathias put it :

The record of Congressional performance is a poor one. These laws — in the
main, drafted in the Executive branch — were passed hastily, without much con-
sideration. Almost all of the laws made no provision for Congressional oversight
nor do they provide a means for terminating the "temporary" delegated powers.

H.R. 3884, which is based on the recommendations of the Church
committee, is designed to insure that the Congress will play a more
active, conscientious and continuing oversight role with respect to
future declarations of national emergencies. For not only does it ter-
minate existing states of emergency after two years, but it prescribes
strict procedures for the declaration and reporting of future emer-
gencies, and for periodic Congressional review and action on those
declarations.

First, the bill defines under what circumstances the President may
declare a national emergency. Second, the bill requires that the proc-
lamation be immediately transmitted to the Congress and published
in the Federal Register. Third, the President may not exercise his
authority under any emergency statutes under a state of national
emergency unless he specifies which provisions he will be invoking
in the proclamation or in subsequent Executive orders published in
the Federal Register and transmitted to the Congress. Fourth, the
Congress may terminate the national emergency at any time by pass-
age of a concurrent resolution. In arty event, the Congress must con-
sider whether the emergency should be terminated at periodic inter-
vals of every six months. Sixth, the President must indicate to the
Congress annually, and through the Federal Register, whether the
emergency is still in effect. And seventh, the President may terminate
the national emergency at any time by proclamation.

Mr. Chairman, the bill contains certain other safeguards which I
will not enumerate here. Suffice it to say, this legislation does institu-
tionalize a very careful oversight procedure which shall insure that
the Congress responsibly exercises its obligations with respect to any
national emergency.

It is my understanding that an amendment may be offered to pro-
vide for the automatic termination of a national emergency after one
year unless the President declares to the Congress at the end of that
one-year period that the emergency is still in effect. Since the bill al-
ready requires the President to make such annual declarations and
forces the Congress to consider a termination semiannually, I q uestion
the necessity of such an amendment. Moreover, I think it is far pref-
erable to have the Congress take affirmative action in the event the
President fails to comply with the reporting provisions, rather than
simply permit the state of emergency to lapse without proper consid-
eration and debate.

In conclusion, Mr. Chairman, I strongly support this legislation as
reported by the Judiciary Committee and urge its enactment.

Mr. Fountain. Mr. Chairman, I rise in support of passage of H.R.
3884, the National Emergencies Act now before the House. The worth-
while purpose of this legislation is to terminate all powers and au-
thorities which were given to the Executive branch during the past
periods of national emergency and which are no longer needed.

261

During times of national crisis, like the Korean conflict or the eco-
nomic difficulties encountered in the Great Depression of the 1930's,
the Congress enacted more than 470 significant statutes delegating
powers to the President, powers which had been the prerogative of
the national legislature since the beginning of the Republic.

Generally speaking, there was good reason for the Congress, in the
course of its legislative work, to delegate powers during times of na-
tional emergency. Problems have arisen, however, in the granting of
various powers to the Chief Executive during previous emergencies
because no mechanisms were set up to terminate the exercise of these
delegated powers once the crisis had passed.

Ironically, the Executive branch still carries on some of its normal
activities under authority accumulated during the designated emer-
gencies of 1933, 1950, 1970 and 1971. Clearly the particular emergen-
cies of these years have passed. Yet, no defined means of terminating or
renouncing those grants of emergency power exist. This is a situation
we must change, Mr. Chairman.

The legislation under consideration today would require the Chief
Executive to specify the powers and emergency statutes he will utilize
in the exercise of emergency powers, and it would require the Chief
Executive to maintain a file of orders, rules, and regulations used in
the exercise of the emergency authority. Furthermore, the statute
would require that such information must be transmitted to the Con-
gress, along with a report of expenditures directly related to the ex-
ercise of those emergency powers, at six-month intervals.

In conclusion, let me say, I support passage of this measure on the
simple proposition that H.E. 3884 will enable the Congress to keep
an active watch on the growth of Presidential power, without curtail-
ing the President's ability to respond in times of national crisis.

Currently, the President can. if he wishes, assume great control over
our personal lives, the public life of our Nation, and over our econom-
ics and political affairs, using the many emergency powers which have
not been formally terminated. Such vast powers are simply not needed
— especially obsolete laws designed for emergencies which have long
since passed. Consequently, our task is to assist in maintaining the
balance of liberties and freedoms embodied in the Constitution by re-
pealing unneedod, outmoded emergency powers.

Passage of this measure would restore that balance without hinder-
ing any future exercise of Presidential power in times of national
emergency, however unforeseen or sudden.

In a word, this measure would preserve the Executive's authority to
assume great and awesome responsibilities in times of national
emergency, while permitting the Congress to discharge its Constitu-
tional responsibility to check the potential exercise of power to the dis-
advantage of the separation of powers and civil liberties of the
American people.

Mr. Chairman, legislation of this kind is long overdue. I therefore
urge passage of H.P. 3884.

Mr. Cleveland. Mr. Chairman. I rise in support of H.E. 3884 as
a long-overdue reform to redress the imbalance of authority between
the Executive and Legislative branches and in the interest of restoring
orderly process in government. After some 40 years of subjecting the

262

country to .government by executive fiat in the name of one type of
emergency or other, it is time to call a halt. The time has come for
reexamination and culling out of the nearly 500 provisions of law
involved in one way or another with the existence of a declared state
of emergency.

The other body, in which this legislation originated, and the Com-
mittee on the Judiciary, which brings us an amended bill, are to be
commended for their initiative in shaping this reform measure.

It would terminate — with certain justifiable exceptions — emergency
powers and authorities — some going back to 1933 — within two years of
enactment and would establish a system for both the declaration and
termination of emergencies in the future.

At the same time, it will restore and strengthen Congressional re-
sponsibility for regulatory-type activities which, because of their
origin in emergencies of the past, tend to impinge on individual liber-
ties and economic freedoms — which, incidentally, I happen to regard
as inherently related.

While I support this legislation, I also wish to take this occasion to
observe that it is somewhat negative in its thrust. The Congress in
essence is withdrawing powers which it has delegated implicitly or
explicitly to the Executive and allowed to remain there long after the
original justification passed into history.

Our failure to act in the past is directly related to an infatuation
with the doctrine of the "activist" Presidency which flourished not
only in academic circles, but in the Congress itself for decades.

I doubt that I am alone in my conviction that this concept of the
Presidency inflated the office and those who have held it in recent ad-
ministrations — and I emphasize my use of the plural — and spurred
the abuses of power inevitably and ultimately associated with its ex-
cessive concentration.

So I suppose that to some of my colleagues this legislation has its
penitential aspects. But I also would like to think that this bill goes
farther than that and like, for example, war powers legislation and
other structural and procedural reforms, it represents another step in
Congressional efforts to regain control over the direction and growth
of government at the Federal level.

In this connection, I would hope that we would pursue the logic of
this legislation and be wary of further actions which would move us
in precisely the opposite direction. I refer to a continuing tendency to
seek salvation from the ills that beset society by the creation of new
programs and new agencies to administer them ; by passing new pieces
of regulatory legislation inevitably followed by massive volumes of
administrative regulation.

LARGER ISSUE BIG GOVERNMENT

We cannot have it both ways. This bill before us today is designed
to curb abuses or the potential abuses of power triggered by Executive
declarations of emergency. Thus the focus is the Presidency and right-
ly so. But I have become increasingly convinced in recent years that

263

we create the same potential for arbitrary action and plain old bureau-
cratic red-tape, delays and mismanagement — bad government — when
we add on to the agencies downtown additional layers of discretionary
authority. My concern, again, is similar with the Executive branch.

The results are much the same, a breakdown of responsive govern-
ment and increasing frustration in our efforts, as Members of the most
representative House of the Legislative branch, to respond when the
anonymous technicians who draft regulations and the more innovative
members of the judiciary get their licks in.

This situation, as much as any of the more widely publicized infirmi-
ties of the traditional independent regulatory agencies, contributes to
the growing public concern over excessive regulation by Government.

Let us by all means pass this bill. But then let us also pursue our
legislative responsibilities with a greater awareness of the practical
limitations on our ability to reform the world with Federal resources
and Federal regulation.

Strengthened legislative oversight backed up by a stronger inclina-
tion to move by legislative enactment when the Executive or the courts
act to frustrate or distort the intent of Congress — this is the practical
alternative available to the Congress. If pursued in the same spirit
that motivates our action on this bill, this can do much to improve the
functioning of Government and its claim to the confidence of the
public.

Mr. Moorhead of California. Mr. Chairman, I have no further re-
quest for time.

Mr. Flowers. Mr. Chairman, I have no further request for time.

The Chairman. The Clerk will read.

The Clerk read as follows :

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "National
Emergencies Act".

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES

Sec. 101. (a) All powers and authorities possessed by the President, any other
officer or employee of the Federal Government, or any Executive agency, as defined
in section 105 of Title 5. United States Code, as a result of the existence of any
declaration of national emergency in effect on the date of enactment of this Aft
are terminated one year from the date of such enactment. Such termination shall
not affect —

(1) any action taken or proceeding pending not finally concluded or deter-
mined on such date ;

(2) any action or proceeding based on any act committed prior to such date;
or

(3) any right or duties that matured or penalties that were incurred prior to
such date.

(b) For the purpose of this section, the words "any national emergency in
effect" means a general declaration of emergency made by the President pursuant
to a statute authorizing him to declare a national emergency.

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES

Sec. 201. (a) In the event the President finds that a proclamation of a national
emergency is essential to the preservation, protection and defense of the Con-
stitution or to the common defense, safety or well-being of the territory or people
of the United States, the President is authorized to proclaim the existence of a
national emergency. Such proclamation shall immediately be transmitted to the
Congress and published in the Federal Register.

66-474 O - 76 - 18

264

(b) Any provisions of law conferring powers and authorities to be exercised
during a national emergency shall be effective and remain in effect (1) only when
the President (in accordance with subsection (a) of this section), specifically
declares a national emergency, and (2) only in accordance with this Act. No law
enacted after the date of enactment of this Act shall supersede this title unless
it does so in specific terms, referring to this title, and declaring that the new law
supersedes the provisions of this title.

Sec. 202. (a) Any national emergency declared by the President in accordance
with this title shall terminate if —

(1) Congress terminates the emergency by concurrent resolution; or

(2) The President issues a proclamation terminating the emergency.

At the end of each year following the declaration of an emergency which is still in
effect, the President shall publish in the Federal Register and transmit to the Con-
gress a notice stating that the emergency is still in effect. Any national emergency
declared by the President shall be terminated on the date specified in any concur-
rent resolution referred to in clause (1) of this subsection, and any powers or
authorities exercised by reason of said emergency shall cease to be exercised after
such specified date, except that such termination shall not affect —

(A) any action taken or proceeding pending not finally concluded or deter-
mined on such date ;

(B) any action or proceeding based on any act committed prior to such date ; or

(b) Not laler than six months after a national emergency is declared, and
not later than the end of each six-month period thereafter that such emergency
continues, each House of Congress shall meet to consider a vote on a concurrent
resolution to determine whether that emergency shall be terminated.

(c)(1)(A) A concurrent resolution to terminate a national emergency de-
clared by the President shall be referred to the appropriate committee of the
House of Representatives or the Senate, as the case may be. One such concurrent
resolution shall be reported out by such committee together with its recommenda-
tions within fifteen calendar days, unless such House shall otherwise determine
by the yeas and nays.

(2) Any concurrent resolution so reported shall become the pending business
of the House in question (in the case of the Senate the time for debate shall be
equally divided between the proponents and the opponents) and shall be voted
on within three calendar days thereafter, unless such House shall otherwise de-
termine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with
respect to a concurrent resolution passed by both Houses, conferees shall be
promptly appointed and the committee of conference shall make and file a report
with respect to such concurrent resolution within six calendar days after the legis-
lation is referred to the committee of conference. Notwithstanding any rule in
either House concerning the printing of conference reports in the Record or
concerning any delay in the consideration of such reports, such report shall be
acted on by both Houses not later than six calendar days after the conference
report is filed. In the event the conferees are unable to agree within forty-eight
hours, they shall report back to their respective Houses in disagreement.

(5) Paragraphs (l)-(4) of this subsection, subsection (b) of this section, and
section 602(b) of this Act are enacted by Congress —

(A) as an exercise of the rulemaking power of the Senate and the House of
Representatives, respectively, and as such they are deemed a part of the rules
of each House, respectively, but applicable only with respect to the procedure
to be followed in the House in the case of resolutions described by this subsection ;
and they supersede other rules only to the extent that they are inconsistent there-
with ; and

(B) with full recognition of the constitutional right of either House to change
the rules (so far as relating to the procedure of that House) at any time, in the
same manner, and to the same extent as in the case of any other rule of that
House.

265

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec. 301. Whenever Congress declares war, any provisions of law conferring
powers and authorities to be exercised during time of war shall be effective from
the date of such declaration.

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES

Sec 401. When the President declares a national emergency no powers or
authorities made available by statute for use in the event of an emergency shall
be exercised unless and until the President specifies the provisions of law under
which he proposes that he, or other officers, will act. Such specifications may be
made either in the declaration of a national emergency, or by one or more con-
temporaneous or subsequent Executive orders published in the Federal Register
and transmitted to the Congress.

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS OF

THE PRESIDENT

Sec 501. (a) When the President declares a national emergency, or Congress
declares war, the President shall be responsible for maintaining a tile and index
of all significant orders of the President, including Executive orders and procla-
mations, and each such Executive agency shall maintain a file and index of all
rules and regulations, issued during such emergency or war issued pursuant to
such declarations.

(c) When the President declares a national emergency or Congress declares
war, the President shall transmit to Congress, within thirty days after the end
of each three month period after such declaration, a report on the total expendi-
tures incurred by the United States Government during such three-month period
which are directly attributable to the exercise of powers and authorities con-
ferred by such declaration. Not later than thirty days after the termination of
each such emergency or war, the President shall transmit a final report on all
such expenditures.

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY
POWER AND OTHER STATUTES

Sec 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C.
1481 (a)) is amended —

(1) at the end of paragraph (9), by striking out "; or" and inserting in lieu
thereof a period ; and

(2) by striking out paragraph (10).

(b) Section 2667(b) of Title 10 of the United States Code is amended—

(1) by inserting "and" at the end of paragraph (3) ;

(2) by striking out paragraph (4) ; and

(3) by redesignating paragraph (5) as (4).

(c) The joint resolution entitled "Joint resolution to authorize the temporary
continuation of regulation of consumer credit", approved August 8, 1947 (12
U.S.C. 249), is repeated.

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (10 U.S.C.
831d(m)) is repealed.

(e) Section 1382 of Title 18, United States Code, is repealed.

(f ) Section 6 of the Act entitled "An Act to amend the Public Health Service
Act in regard to certain matters of personnel and administration, and for other
purposes", approved February 28, 1948, is amended by striking out subsections
(b), (c), (d), (e), and (f ) 42 (U.S.C. 211b).

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742)
is repealed.

(h) This section shall not affect —

( 1 ) any action taken or proceeding pending not finally concluded or determined
at the time of repeal ;

(2) any action or proceeding based on any act committed prior to repeal ; or

266

(3) any rights or duties that matured or penalties that were incurred prior to
repeal.

Sec. 602 (a) The provisions of this Act shall not apply to the following pro-
visions of law, the powers and authorities conferred thereby, and actions taken
thereunder :

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C. 95(a) ;
50U.S.C. App. 5(b)) ;

(2) Section 673 of Title 10, United States Code;

(3) Act of April 28, 1942 (4 U.S.C. 278b) ;

(4) An act of June 30, 1949 (41 U.S.C. 252) ;

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ;

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15). ;

(b) Each committee of the House of Representatives and the Senate having
jurisdiction with respect to any provision of law referred to in subsection
(a) (1) (6) of this section shall make a complete study and investigation con-
cerning that provision of law and make a report, including any recommendations
and proposed revisions it may have, to its respective House of Congress within
two hundred and seventy days after the date of enactment of this Act.

Mr. Flowers (during the reading). Mr. Chairman, I ask unani-
mous consent that the bill be considered as read, printed in the Record,
and open to amendment at an} 7 point.

The Chairman. Is there objection to the request of the gentleman
from Alabama ?

There was no objection.

COMMITTEE AMENDMENTS

The Chairman. The Clerk will report the first committee
amendment.

Mr. Flowers. Mr. Chairman, I ask unanimous consent that all the
committee amendments be considered en bloc and that reading of the
committee amendments be dispensed with and that they be printed in
the Record.

The Chairman. Is there objection to the request of the gentleman
from Alabama?

There was no objection.

The committee amendments are as follows :

Page 2, line 2, strike "one year" and insert "two years".

Page 2, lines 13 and 14 strike "pursuant to a statute authorizing him to declare
a national emergency".

Page 3, line 21, after "clause (1)". insert "or on the date specified in a procla-
mation by the President terminating the emergency as provided in clause (2)".

Page 6, strike all of lines 14, 15, 16, 17, 18, and 19.

Page 6. line 20, after "TITLE", strike "IV" and insert "III".

Page 6, line 22, after "SEC", strike "401" and insert "301".

Page 7, line 6, after "TITLE", strike "V" and insert "IV".

Page 7, line 8, after "Sec", strike "501" and insert "401".

Page 7, line 12, after "each", strike "such".

Page 7, line 22, after "within" strike "thirty" and insert "ninety", and after
"each" strike "three-" and insert "six-".

Page 7, line 25, strike "three-month" and insert "six-month".

Page 8, line 2, strike "thirty" and insert "ninety".

Page 8, line 5, after "TITLE", strike "VI" and insert "V".

Page 8, line 8, after "Sec", strike "601" and insert "501".

Page 8, line 24, after "Act of 1933" insert "as amended".

Page 9, line 18, after "Sec", strike "602" and insert "502".

Page 9, line 22, strike "95(a)" and insert "95a".

Page 9, strike all of line 23.

Page 9, line 24, strike "(3)" and insert "(2)".

Page 9, line 25, strike "(4)" and insert "(3)".

267

Page 10, line 1, strike "(5)" and insert ''(4)".

Page 10, line 3, strike "(6)" and insert "(5)".

Page 10, line 4, at the end of the sentence, strike the period and insert a
semi-colon.

Page 10, after line 4 : Insert :

"(6) Public Law 85-804 (Act of Aug. 28, 1958, 72 Stat. 972; 50 U.S.C. 1431-
1435) ;

"(7) Section 2304(a) (1) of Title 10. United States Code;

"(8) Sections 3313, 6386(c) and 8313 of Title 10, United States Code."

Page 10, line 7, strike "(1) (6)".

The Chairman. The question is on the committee amendments.
The committee amendments were agreed to.

AMENDMENT OFFERED BY MR. MATSUNAGA

Mr. Matstjnaga. Mr. Chairman, I offer an amendment.
The Clerk read as follow- :

Amendment offered by Mr. Matsunaga : On page 3, line 16, strike the sentence
beginning "At the end" ;
And on page 6, immediately after line 15. insert the following new subsection :
"(d) Any national emergency declared by the President in accordance with
this title, and not otherwise previously terminated, shall terminate on the anni-
versary of the declaration of that emergency if, within the 90-day period prior to
each anniversary date, the President does not publish in the Federal Register
and transmit to the Congress a notice stating that the emergency is still in effect."

Mr. Matsunaga. Mr. Chairman, as the author of Public Law 92-
128, which prohibits the internment of any U.S. resident under au-
thority of a national emergency. I stand fully in support of legislation
to provide for a national and deliberate review of declared national
emergencies. This is the thrust of H.R. 3884 and I commend the Com-
mittee on the Judiciary. Chairman Kodino and especially the chair-
man of the subcommittee, Mr. Flower-, for bringing this legislation to
the floor today. The bill will clear up the muddled situation which
exists today relative to the duration of declared national emergencies.

My only concern about U.K. 3884 is with it> provision that requires
the President to redeclare any national emergency every year by pub-
lishing in the Federal Register and transmitting to Congress a notice
stating that the emergency is still in effect. By failing to provide for
any direct sanction in the event that the President fails to comply
with this notice provision, the bill encourages Executive neglect, which
may well result in frustration when Congress attempts to enforce this
requirement. As reported. U.K. 3884 also fails to state the consequences
of the President's failure to comply with the requirements of publica-
tion and transmittal of notice. The question as to whether or not the
declared national emergency continues is left unanswered.

My amendment would provide that if no notice of a continuing
national emergency is transmitted to the Congress and printed in the
Federal Register in the manner specified in the bill, the emergency
would automatically terminate on its next anniversary date. My
amendment would provide another method by which declared emer-
gencies could be terminated, in addition to the two methods provided
in the committee bill, but only in a technical sense, for the President
would retain the power to redeclare the emergency by a simple pub-
lication in the Federal Register and transmittal of notice to the
Congress.

268

If my amendment is adopted, Members of Congress, Executive agen-
cies, and the public desiring information on the status of any de-
clared national emergency, may look to a single publication, the
Federal Register, in the secure knowledge that any declared emergency
over a year old has been terminated if not listed in this publication.

Mr. Chairman, my amendment would clearly serve the intended
purpose of H.K. 3884, and I urge its adoption.

Mr. Flowers. Mr. Chairman, would the gentleman yield for a
comment ?

Mr. Matsunaga. I am happy to yield to the distinguished gentle-
man from Alabama, chairman of the subcommittee.

Mr. Flowers. Mr. Chairman, I appreciate the gentleman's com-
ment. I certainly did not want to cut the gentleman short, particularly
in the earlier part of the gentleman's statement here.

I would say from this Member's point of view it is a highly accepta-
ble amendment. I think probably it does add something that needs to
be added to the legislation that might not be taken care of quite as
cleanly and as properly through the regular six-month requirement of
the concurrent resolution to terminate the emergency. It would be
undoubtedly a better process to have, as the gentleman suggests in his
amendment.

Mr. Chairman, as far as the Members on this side are concerned, we
will accept the amendment.

Mr. Matsunaga. Mr. Chairman, I thank the gentleman from Ala-
bama. I believe the gentleman from Alabama has exercised keen in-
sight into the pending matter.

Mr. Moorhead of California. Mr. Chairman, will the gentleman
yield?

Mr. Matsuxaga. I am happy to yield to the distinguished gentle-
man from California.

Mr. Moorhead of California. Mr. Chairman, we will also accept the
amendment.

Mr. Matsunaga. I thank the gentleman from California. His co-
operation as minority floor manager has been excellent and very much
appreciated.

Mr. Danielson. Mr. Chairman, will the gentleman yield ?

Mr. Matsunaga. I most gladly yield to the gentleman from
California.

Mr. Danielson. Mr. Chairman, I want to say I will support the
amendment of the gentleman from Hawaii. I think this self-destruct
provision of the Matsunaga amendment will add a good deal to the bill
in that emergencies will not just go on and on because were are too
busy to act upon them. It is a very wholesome amendment. It will im-
prove the other beneficial portions of the bill.

Mr. Matsunaga. Mr. Chairman, if the gentleman will yield, I thank
the gentleman for his contribution and for his keen insight. With his
support, I know now there is no "mission impossible."

Mr. Danielson. Mr. Chairman, I think the world should remember
this as the Matsunaga "self-destruct amendment."

The Chairman. The question is on the amendment offered by the
gentleman from Hawaii (Mr. Matsunaga).

The amendment was agreed to.

269

AMENDMENT OFFERED BY MR. DRINAN

Mr. Drinan. Mr. Chairman, I offer an amendment.
The Clerk read as follows :

Amendment offered by Mr. Drinan : Page 3, strike out the period at the end
of line 15 and insert in lieu thereof the following : " ; or

"(3) thirty calendar days elapse following the declaration of an emergency
unless Congress (A) has authorized by concurrent resolution the extension of
such an emergency to a date certain, or (B) is physically unable to meet as a re-
sult of an armed attack upon the United States."

Mr. Drinan. Air. Chairman, we have to decide here today a very
crucial question. Are we going to allow this vast emergency power of
the President to be continued in the way that it has been done over the
last 40 years? This bill is good, but it is imperfect. My amendment
simply states that the President can declare an emergency, but an
emergency in the nature of things is a short thing. It is something
urgent.

Consequently, my amendment states that after 30 days this state of
emergency lapses unless the Congress by concurrent resolution extends
the emergency to a date certain. That would be simple to do at the
request of the President. We are not tying his hands. At the same time,
we are in control of this vast reservoir of power that is conferred upon
the President.

My amendment also provides that the emergency can continue if the
Congress is physically unable to meet as a result of an armed attack on
the United States. This once again tracks the War Powers Resolution
where we stated that the President, under the Constitution, under our
laws, has only those powers that we, the Congress, specifically confer
upon him.

Under my amendment when we confer the power to declare an emer-
gency, we state that this power can be exercised for one month, and for
one month only, and that at the end of that 30 days it terminates unless
the Congress, both bodies, by concurrent resolution extend it. This obvi-
ously gives us a further way of protecting the country from the misuse
and the abuses of the vast, inherent emergency powers of the President.

I think this amendment would improve the bill. I think furthermore
that this amendment coincides with the original intent of the Senate
Special Committee. Senator Frank Church stated in testimony before
this subcommittee, that when they brought the bill out, they clearly
intended that the emergency power would exist only during a specific
period of 30 or 45 or 60 days. It was the Administration that caused the
Church Special Committee to change its view and to state that the
emergency goes on and on.

With the amendment adopted which was offered by the gentleman
from Hawaii (Mr. Matsunaga), I think that the dilemma is pointed up
even more sharply : that we cannot wait for an entire year. There is no
reason why we should legislate that a whole year can go by in which
these emergency powers are continued unless the Congress acts, or un-
less the President takes affirmative action.

The proposal I am making, Mr. Chairman, tidies up this bill. It
states exactly what we, as the Congress, should do with this vast emer-
gency power. In all candor, we have abused our powers in this area over
the past 40 years. Since 1933 there have been some 470 emergency decla-

270

rations, all there in the law. If we are going to continue emergency
powers in the President — as we must — we must very carefully state
that he has that power for 30 days and for 30 days only unless, by con-
current resolution, we seek an extension of that particular state of
emergency.

Mr. Chairman, I urge the Members to vote for this amendment. It
would improve this Act. It would reaffirm the Congressional powers
without inhibiting the powers of the President.

Mr. Flowers. Mr. Chairman, I rise in opposition to the amendment
of the gentleman from Massachusetts. It seems to me, Mr. Chairman,
that what we have here in the bill is a perfectly balanced, coordinated
approach to a problem. If we adopted the amendment as the gentleman
from Massachusetts would have us do by his amendment, we would be
tilting substantially in favor of, I think, enlarging the problem of
Executive action while not really giving the Congress what this amend-
ment seeks to do.

Let us remember what the bill provides in section 202(a) , subsection
(1), "Congress terminates the emergency by concurrent resolution; or

(2) the President issues a proclamation terminating the
emergency."

In addition thereto, there is a written-in proviso in the legislation
that at each six-month period after the declaration of an emergency,
the Congress — that is, both the House and the Senate — must vote on the
issue whether or not to continue the emergency. That seems to me to be
an adequate safeguard here.

The gentleman's amendment, I must say, contemplates that the Con-
gress will not be responsible. I cannot find it in myself to declare that
for this or any future Congress. Furthermore, I do not think, Mr.
Chairman, there is an essential parallel between this resolution and the
War Powers Act.

It is not contemplated under any of the emergency powers that are
conferred upon the President through various pieces of legislation that
we will be taken into a war and put American men and women overseas
fighting a war, as does the War Powers Act.

We are talking about mostly technical matters. The objective of this
legislation is to either wipe the slate clean or to allow a process whereby
the slate can be wiped clean in the future as to these declared emer-
gencies and the powers activated thereunder.

Therefore, Mr. Chairman, I do oppose the gentleman's amendment
and I ask my colleagues to support us in voting down the amendment.

Mr. Mazzoli. Mr. Chairman, will the gentleman yield?

Mr. Flowers. I yield to the gentleman from Kentucky.

Mr. Mazzoli. I thank the gentleman for yielding. I appreciate what
the gentleman said, and I concur in his statement. I oppose the amend-
ment offered by the gentleman from Massachusetts.

Is it not correct, I ask the Chairman, that during our hearings and
our discussions it was stated that the gentlemen from the other body,
in an effort to get a piece of legislation like this on the books, urged us
not to make any changes in order that the arrangements made with the
Administration could go forward and this bill could be signed ?

Mr. Flowers. The gentleman is correct. A great deal of work was
done in the other body on this legislation. We worked, I think, hard
and diligently on it, and in a large part we did accept what the other

271

body did. It was not because we were rubberstamping the other body,
but because it was good work. The compromise was a good piece of leg-
islation. For that reason, I think we should leave this particular pro-
vision intact.

Mr. Mazzoli. If the gentleman will yield further, it would seem to
me. Mr. Chairman, that unless there is some real, profound need for
making these changes, we should leave the legislation the way it is.

Mr. Flowers. I thank the gentleman.

Mr. Conyers. Mr. Chairman, I move to strike the requisite number
of words.

Mr. Chairman, I do not know if I understood, by the previous col-
loquy with the distinguished chairman of the subcommittee, whether
or not we have received Senate instructions not to tamper with this
legislation. If that is the effect of the discussion, I suppose it is clearly
not relevant to the deliberations of 435 Members. But as I see this
amendment — and I would like to raise this question with my colleagues
on the subcommittee — the apparent thrust of this amendment is to de-
termine whether an emergency under this legislation is to exist for one
year or 30 days. I think that is an important enough question with
which some of us might have a different view. I, of course, would be
one of those who would like to limit the emergency powers of the
Executive Branch to as short a time as is reasonable, and 30 days seems
reasonable to me. I suppose that the Congress could, as the chairman
of the subcommittee has pointed out, at any time operate within that
one-year period, but I think the burden more properly in this instance
should rest upon the Executive branch in requesting an emergency
situation to exist.

I would say that this is a reasonable issue that has been framed by
our colleague from Massachusetts. Would the gentleman not agree to
that?

Mr. Flowers. Mr. Chairman, will the gentleman yield?

Mr. Cox vers. I will yield to the gentleman.

Mr. Flowers. Xo, I would not agree to that. I think the gentleman's
amendment contemplates that the Congress must act within 30 days
in order to continue the emergency powers. Just as the gentleman said,
he is apparently wary that the Congress would not act to terminate
emergency powers. There are many impediments to the Congress act-
ing on anything within a 30-day period. For instance we have just had
a 30-day recess in the month of August. We have many reasons why I
think we should not tie the Administration's hands with this sort of
provision.

Mr. Coxyers. Would the gentleman not agree with me that if we
were in a state of emergency and wished to terminate it and we are on
a 30-day recess, we would probably be able to rise to the occasion?

Mr. Flowers. Mi-. Chairman, I will say to the gentleman, if he will
yield further, that I would hope we could rise to the occasion, but I
would not want to say for sure we would. I do not think I could say,
nor could he.

I think we are really talking about such a minor part of this legisla-
tion that the language here takes care of what the gentleman is ap-
parently concerned about. We are not talking about extending this
thing ad infinitum : we are talking about only a short period of time.

272

Mr. Coxyers. Mr. Chairman, if my friend, the gentleman from Ala-
bama (Mr. Flowers), is not certain whether the Congress in recess
would be able to come back to terminate an emergency, I think that
is the best stated case for this amendment and the best reason why
either of us who support it would offer it.

Mr. Mazzoli. Mr. Chairman, will the gentleman yield?

Mr. Coxyers. I yield to my friend, the gentleman from Kentucky.

Mr. Mazzoli. Mr. Chairman, I thank the gentleman for yielding.

I have been very interested in this conversation. I think this really
goes back to our discussions concerning the War Powers Act. The
House was divided on the question in this case here of whether the pro-
visions of the War Powers Act should be brought in upon the action
of Congress or upon its inaction.

Many of us felt that the inaction of Congress was an inappropriate
way to show our displeasure at the pursuit of some international ad-
venture involving American Armed Forces ; others felt that was the
appropriate way. because of the parliamentary problems involved, that
inaction was the proper way to display our opposition.

Here in the subcommittee we came to this same philosophical split.
We in the subcommittee eventually went along with the view that it
should depend upon Congressional action rather than inaction, as the
gentleman from Massachusetts (Mr. Drinan) would suggest.

Mr. Coxyers. But, Mr. Chairman, I think this question raised by
the amendment turns on whether an emergency should be constituted
within 30 days or within 12 months. I think that is a reasonable basis
for our position.

Mr. Mazzoli. Mr. Chairman, if the gentleman will yield further, I
think not in any case does it depend on whether the Congress should
take action in 30 days or in 12 months under the present bill. There
is nothing that prevents us from taking action.

Mr. Coxyers. I realize that, but we are trying to define the time
period.

Mr. Drixax. Mr. Chairman. I make the point of order that a quorum
is not present.

The Chairmax. Evidently a quorum is not present.

The Chair announces that he will vacate proceedings under the call
when a quorum of the committee appears.

Members will record their presence by electronic device.

The call was taken by electronic device.

QUORUM CALL VACATED

The Chairman. One hundred Members have appeared. A quorum
of the Committee of the Whole is present. Pursuant to rule XXIII.
clause 2. further proceedings under the call shall be considered as
vacated.

The committee will resume its business.

Mr. Moorehead of California. Mr. Chairman. I move to strike the
requisite number of words.

Mr. Chairman. I rise in opposition to this amendment. I think in the
bill that we have before us there are adequate opportunities given to
Congress to terminate a national emergency. Congress can terminate a
declared national emergency at any point, in one day. or in ?>P)5 days, or

273

at any time they desire to do so by a vote of both Houses of the Con-
gress to terminate a national emergency.

Congress is required to review a national emergency after nine
months and it would automatically end after a year if the Congress did
not find that it was still necessary to retain it.

We have passed the Matsunaga amendment which puts extra pres-
sure on the President and the Executive branch to justify an
emergency.

This amendment, however, that is proposed by the gentleman from
Massachusetts (Mr. Drinan) would terminate an emergency 30 days
after it was declared if either or both Houses of the Congress had not
been able to get togethei to pass a resolution supporting the emergency.

All of us know that the Senate many times is tied up in filibusters or
it is tied up on other issues and we in the House also get tied up on
major bills that we are considering. Sometimes we go on recess. It is
unrealistic to think we can run our Government in such a way that
one or both Houses of the Congress could terminate a national emer-
gency with absolutely no action whatsoever.

I think the proposed amendment is a very dangerous amendment.
I think it would do an injustice to the purpose we have before us. I
would ask that the amendment be defeated.

Mr. Drixax. Mr. Chairman, will the gentleman yield ?

Mr. Mooriiead of California. I yield to the gentleman from Massa-
chusetts.

Mr. Drtntan. Mr. Chairman, would the gentleman from California
spell out why we should have a national emergency at all. where the
President unilaterally has exerted a power to do extraordinary things'?
Should we not state that it i.- an extraordinary thing when he is exer-
cising unspecified powers \ Should we not say that such powers which
lie assumes, then, should terminate within 3D days unless we. the law-
makers of the nation, specifically and affirmatively give the President
a renewal of that power \

Mr. Moorhead of California. In this particular legislation we are
telling the President that he must designate those powers that he is
going to use under a declaration of a national emergency. Congress
has given the President certain authority to act under emergency
situations, and the President triggers specifically the laws that this
Congress itself has passed on when he declares a national emergency. I
know that there are other unspecified powers that a President under
the Constitution can trigger, but most of the powers we are involved
with here come out of Congressional acts.

Unless there is a positive action on the part of the Congress stating
that there is no emergency or that they are not terminating the
emergency. I do not believe the act of Congress should be —

Mr. Drixax. If the gentleman will yield again, under the six-months
provision as set forth in the bill, the burden is on us to state that the
President should not be exercising these powers. It seems to me that
the burden should always be on the President, and my amendment
seeks to place it on the President. It states that if he exercises these
emergency, extraordinary, most unusual, powers, then the exercise of
those powers terminates automatically after 30 days, unless we in the
Congress affirmatively extend them. But under the six-months provi-

274

sion, if the Senate fails, and if the House passes it, then we have no
way of terminating that particular emergency. It could go on for years
and years.

Mr. Moorhead of California. We can terminate any emergency at
any time with a vote of both Houses of Congress.

Mr. Drinan. But in the nature of things, that puts the burden on us,
and the burden should not be on us. We gave, and the Congress his-
torically has given, emergency powers for a very short period of time,
for something unforeseen and unprecedented, where the President has
to act in an unusual emergency situation. We have been lucky over the
last 40 years that Presidents have not very often abused those powers,
and now is the hour of the first curbing of this emergency power.

The Chairman. The time of the gentleman has expired.

(At the request of Mr. Flowers, and by unanimous consent, Mr.
Moorhead of California was allowed to proceed for 1 additional
minute.)

Mr. Flower. Mr. Chairman, will the gentleman yield?

Mr. Moorhead of California. I yield to the gentleman from
Alabama,

Mr. Flowers. I thank the gentleman for yielding.

The basic problem here is that the gentleman from Massachusetts
insists on a 30-day period, and the bill has by operation a six-months
period in which the Congress has got to act on it. If we want to stay
with the present situation, which most of us seem to agree is not a good
situation, while we have in the legislation basically a compromise posi-
tion which recognizes the Legislative branch's and the Executive
branch's peculiar problems, if we want to give it all up in order to try
to have this 30-day period, then that is what we should do. However,
I do not think that is what a majority of the Members here want to
do. I think we have a good measure here, a good measure that works
to everybody's advantage, and so I think we ought to go with it.

The Chairman. The time of the gentleman has expired.

Mr. John L. Burton. Mr. Chairman, I move to strike the requisite
number of words.

Mr. Chairman, I would like to direct a question, if I could, to the
proposer of the amendment. I believe that there is a great deal of merit
in the point of view that he has expressed concerning the entire proce-
dure of how the emergencies would be terminated. I also believe there
is a great deal of merit in the concern of the chairman and ranking
minority member at least as far as the 30-day period is concerned.
I am wondering what the gentleman's response would be, and also the
response of the others, to, say, a 90-day period, because we are dealing
with a very extraordinary power given to the Chief Executive under
states of emergency.

Under laws that are presently around, there are some pretty heavy
things that have come down. If we read them, we would think it was
1984. I would not say any Chief Executive would use these powers,
but they are certainly there, and I am just wondering if a proposal of
90 days, which would seem to be at least to me a lot more reasonable
than 30 days, and a lot more reasonable than the situation presently,
might be at least an acceptable substitute for the gentleman's amend-
ment that I know I could support.

Mr. Drinan. Mr. Chairman, will the gentleman yield?

275

Mr. John L. Burtox. I yield to the gentleman from Massachusetts.

Mr. Drixax. I thank the gentleman for yielding.

I am not wedded to 30. 60. or 90 days, and I would be prepared to
accept a substitute for 90 days. I think the basic principle I am fighting
for is the burden of proof should be on the President and not on the
Congress, and if the President asserts these powers and he wants to
continue them after a certain term. 30. 60, or 90 days, the burden should
be on him to reconvince the Congress, and the Congress — and the Con-
gress alone — should extend those powers.

I thank the gentleman for those comments, and I would accept 60
or 90 days, because the burden of proof is the essential thing.

As the gentleman suggested, there have been some terrible enact-
ments that have come down, some 400 or 4o0, over the last 30 years,
and we have been very fortunate that no President has exploited them.
Congress has been derelict in its duty in not tidying up this legislation.

Mr. Coxyers. Mr. Chairman, will the gentleman yield?

Mr. John L. Burtox. I yield to the gentleman from Michigan.

Mr. Coxyers. I thank the gentleman for yielding.

I would like to commend the gentleman from California for suggest-
ing that perhaps some compromise period may make good sense. I
think that a period of 12 months or 6 months or 30 days has not been
cast in granite. I concede that the Senate has acted.

But perhaps the distinguished chairman of this subcommittee would
consider some possible form of a 60- or 90-day provision. I think that
unless we do this we are extending a definition of emergency to cover
a period of time that I think is longer than it should really be under
these circumstances and as this bill i< written.

Mi*. Flowers. Mr. Chairman, will the gentleman yield ?

Mr. John L. Burtox. I yield to the chairman.

Mr. Flowers. Mr. Chairman, T think the gentleman's proposal of
a longer period is far more acceptable than the 30-day period but I
regret I cannot accept it on the basis of principle as well as on timing.
The gentleman from Michigan knows we are not rnbberstamping the
Senate. I certainly hope he knows that. It is not this Member's inten-
tion to do that.

I think we have a good balance in the bill between the recognition of
the problems of the Legislative branch and those of the Executive
branch with its peculiar responsibilities.

As the gentleman from ^fassachusetts says, the reason this is here
is because we failed to act over a long period. There has been no real
abuse by the Executive branch of the emergency powers. Many of the
emergency powers that have been utilized have been utilized for the
purpose of carrying on the day-to-day business of the Government.
Those powers have been utilized for so long they have become in-
grained. They are almost like regular law instead of emergency
powers, but we want to change this through this legislation. But to
change the whole thrust of it so that we would require some affirma-
tive legislative action in order to continue the emergency, I just could
not accept that, regretfully.

I ask my colleagues to vote down the amendment.

Ms. Holtzmax. Mr. Chairman, I move to strike the requisite number
of words.

Mr. Chairman, basically T support the amendment that has been
offered by the gentleman from Massachusetts (Mr. Drinan) which

276

would automatically terminate a national emergency declared by the
President in 30 days unless specifically extended by Congress. I am
gravely concerned that under this bill in order to abridge vast Presi-
dential emergency powers the Congress is going to be required to act
affirmatively.

In the last session of Congress we enacted the war powers legisla-
tion. In that legislation we tried to control the warmaking power that
we had seen abused. We said that if the President starts his own war,
it has got to terminate automatically after a 90-day period.

That was an important provision because sometimes it takes a great
deal of effort to get Congress to act affirmatively — even to stop abusive
Executive action. I do not think the Congress^ ought to be put to the
affirmative burden of stopping an abuse of Executive emergency
powers. I think instead that after a 30- or 90-day period the emergency
powers ought to terminate automatically unless Congress is persuaded
that the circumstances warrant an extension.

I cannot believe the Congress of the United States is incapable of
acting expeditiously and promptly in a real emergency when called
upon by the President.

We do not even know the full extent of the emergency powers the
President has. I have not seen a list of all of them. Is he allowed to have
people arbitrarily arrested? Can he suspend various civil rights? If I
saw a complete list of the powers the President could exercise under
this bill, perhaps I would be less concerned.

In addition, there is another problem : the President's emergency
powers come into play when the President declares a national emer-
gency. Yet this bill permits the President to declare a national emer-
gency if he finds it "essential to the preservation, protection and
defense of the Constitution or to the common defense, safety, or well-
being of the territory or people of the United States." These are pretty
vague and broad standards for declaring a national emergency and
triggering vast Presidential powers. That is why my concern exists.

"When we delegate vast powers to a President, we ought to also take
into account how to protect the people from an abuse of those powers.
Unfortunately this bill fails to do this effectively.

Mr. Flowers. Mr. Chairman, if the gentlewoman will yield, the
gentlewoman knows that this bill does not confer the powers. Those
were conferred by other acts. And the report of the committee and
the Senate study and many other books and references including
earlier compilations by the House Judiciary Committee are at our
disposal now to determine what emergency powers exist under the
statutes passed by the Congress over a long period of time.

Ms. Holtzmax. Would the gentleman agree we have not as members
of this committee or Congress even received a list of all the emergency
powers the President has under the statute ?

Mr. Flowers. Xo. I disagree with the gentlewoman. We have had
this before, the subcommittee had that fully before it, a rather com-
plete volume which identifies the statutes and sets forth the language
of the different pieces of legislation conferring these powers.

The thrust »of this legislation is to provide a vehicle whereby a
determination is made of a national emergency which activates these
powers.

277

Ms. Holtzman. The gentleman would surely agree that in order
to terminate a Presidential declaration of emergency — assuming there
is no real emergency — the bill requires the Congress to act affirma-
tively but that in the War Powers bill in order to prevent the possible
abuse of Presidential powers those war-making powers terminate
automatically without affirmative Congressional action.

Mr. Flowers. This bill by its own terms set up the absolute require-
ment that the Congress meet on the measure but on a six-month basis.

Ms. Holtzmax. Would the gentleman answer this? Suppose the
Congress in a six-month period is unable to reach an agreement about
what to do; the emergency power persists, is that not true?

Mr. Flowers. I,f Congress does not deny the emergency power, then
the emergency exists.

Ms. Holtzmax\ Suppose the House of Representatives opposes the
declaration of emergency and the Senate votes otherwise and an agree-
ment cannot be reached in conference, then what happens — the emer-
gency power persists, is that not correct ?

Mr. Flowers. That is correct, if Congress fails to act, then Congress
has failed to act.

Ms. Holtz:\iax\ That is precisely the problem I have. Congress
has the burden of stopping a Presidential impropriety instead of
giving the President the burden of affirmatively demonstrating that an
emergency really exists.

AMENDMENT OFFERED BY MR. COXYERS AS A SUBSTITUTE FOR THE
AMENDMENT OFFERED BY MR. DRTXAX'

Mr. Coxyers. Mr. Chairman, I offer an amendment as a substitute
for the amendment offered by the gentleman from Massachusetts (Mr.
Drin an).

The Clerk read as follows :

Amendment offered by Mr. Conyers as a substitute for the amendment offered
by Mr. Drinan : Page 3, strike out the period at the end of line 15 and insert
in lieu thereof the following : " ; or

(3) 90 calendar days elapse following the declaration of an emergency unless
Congress (A) has authorized by concurrent resolution the extension of such
an emergency to a date certain, or (B) is physically unable to meet as a result
of an armed attack upon the United States."

Mr. Coxyers. Mr. Chairman, it is my hope that our subcommittee
chairman, the gentleman from Alabama (Mr. Flowers) will see in his
wisdom the validity of the 90-day calendar period that would require
Congress to authorize such a resolution if the emergency itself had
not been terminated within that period of time.

I think this came out of our previous colloquv with the gentleman
.from California (Mr. John L. Burton). To me it makes eminentlv
good sense. I think the period of time should not rest upon the Execu-
tive branch that an emergency could continue by definition and pref-
erentially for a period of one year as proposed in^the amendment of the
gentleman from Hawaii.

It is conceded that the Congress can act at any time that it chooses,
but by definition, I think that to extend an emergency beyond 90 days
is stretching the generally understood meaning of that time.

278

For those reasons, I join with those of my colleagues who think that
this would be a more reasonable and more practical resolution of what
is generally a discussion around the definition of emergency.

I would hope that my colleagues would consider this substitute
amendment and I would yield to the original maker of the amend-
ment, the gentleman from Massachusetts (Mr. Drinan), to seek his
support.

Mr. Drinan. Mr. Chairman, I have no objection to the substitute
amendment offered by the distinguished gentleman from Michigan
(Mr. Conyers). I think it is a reasonable one, and I would urge my
colleagues to support it.

Mr. Flowers. Mr. Chairman, I rise in opposition to the substitute
amendment. It is eminently more sensible than the original, but it
still bears the same basic fault that the original did. It destroys the
finely tuned balance that is in the original piece of legislation.

Mr. Moorhead of California. Mr. Chairman, will the gentleman
yield?

Mr. Flowers. I yield to the gentleman from California.

Mr. Moorhead of California. Mr. Chairman. I wish to join with
the chairman of the subcommittee in his remarks. I think that while
it is somewhat better than the original, the same major objections are
present in the substitute amendment.

Mr. Flowers. Mr. Chairman, I ask for a no vote on the substitute
and on the amendment.

The Chairman. The question is on the amendment offered by the
gentleman from Michigan (Mr. Conyers) as a substitute for the
amendment offered by the gentleman from Massachusetts (Mr.
Drinan) .

The question is taken; and on a division (demanded by Mr. Drinan)
there were — ayes 17 ; noes 36.

So the substitute amendment for the amendment was rejected.

The Chairman. The question is on the amendment offered by the
gentleman from Massachusetts (Mr. Drinan).

The amendment was rejected.

AMENDMENT OFFERED BY MR. DRINAN

Mr. Drinan. Mr. Chairman, I offer an amendment.
The Clerk read as follows :

Amendment offered by Mr. Drinan : Page 2, line 22, insert immediately after
the period the following :

"The President shall issue such a proclamation pursuant only to: (1) a decla-
ration of war; (2) an attack upon the United States; its territories or posses-
sions, or its armed forces; or (3) the prior enactment of a joint resolution
specifically authorizing the President to issue such proclamation. The President
in every possible instance shall seek the advice and counsel of Congress and
provide Congress with all pertinent information before proclaiming the existence
of a national emergency. After such proclamation has been issued, the President
shall consult regularly with Congress until the national emergency has been
terminated."

Mr. Drinan (during the reading). Mr. Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.

The Chairman. Is there objection to the request of the gentleman
from Massachusetts ?

279

There was no objection.

Mr. Drixax. Mr. Chairman, in H.E. 3884 there is no standard
really, whatsoever, when and why the President can proclaim a na-
tional emergency. Section 201 states simply that the President may
do this when he finds that such a proclamation of a national emer-
gency is essential to the "preservation, protection and defense of the
Constitution or to the common defense, safety, or well-being of the
territory or people of the United States."

It seems to me. Mr. Chairman, very clear that the Congress was
given the lawmaking powers under the Constitution, and that what-
ever right the President has to declare an emergency should be spelled
out by the Congress of the United States. Though the last 40 years,
the Congress has been very careless and derelict in not doing this. I
think that today in this bill we should specify three areas, and three
areas alone, in which the President can proclaim an emergency. Obvi-
ously, when there is a declaration of war; second, when there is an
attack upon the United States or its territories or its armed forces:
and third, when the Congress by prior enactment of a joint resolution
specifically authorizes the President to issue such proclamation.

In each case, once again tracking the War Powers Resolution Act,
the President in every possible instance, according to my amendment.
shall seek the advice and counsel of Congress and shall provide Con-
gress with all pertinent information before proclaiming the existence
of a national emergency.

After the emergency has been proclaimed, the President shall con-
sult regularly with the Congress until the national emergency has been
terminated.

The key word in the language of my amendment is "consult." Why
should we in the Congress allow the President unilaterally to proclaim
an emergency and unilaterally to implement the provisions of said
emergency? That is an abdication of the power clearly placed in the
Congress bv the Constitution. I would urge, therefore. Mr. Chairman,
that we adopt as an amendment to this particular bill today this
clearly defined, explicitly spelled-out set of reasons why the President
in certain limited unusual circumstances may in fact declare an
emergency.

Mr. Flowers. Mr. Chairman, I rise in opposition to the amendment
offered by the gentleman from Massachusetts.

Mr. Chairman. I must say in this particular instance I am even in
much stronger opposition than I was in the previous instance. The
gentleman's nmendment would attempt, it appears, to derogate the
power of the President under the Constitution of the United States. It
would attempt to define within a very, very narrow scope the power of
the President to declare a national emergency. The gentleman's amend-
ment would require that it be done only pursuant to a declaration of
war or an attack upon the United States, which we would have to
assume would be a prelude to a declaration of war. or a prior enact-
ment of a joint resolution. In other words, the Legislative branch
would be required to pass a joint resolution directing the President to
so declare a national emergency.

Mr. Chairman. I do not think that is what the principle of separa-
tion of powers of the branches of Government under our Constitution
envisions. It envisions that the Executive has some very peculiar

66-474 O - 76 - 19

280

responsibilities as does the Legislative branch. We do not govern by
legislative fiat in this country. We are not a parliamentary form of
government.

Mr. Chairman, I strongly oppose the gentleman's amendment. I
think there would be serious questions as to whether this bill would
be enacted into law should this amendment be adopted. It would com-
pletely destroy the balance, as I said previously, that exists in this
bill.

Mr. Chairman, for these and a multitude of other reasons I strongly
oppose the gentleman's amendment.

Mr. Moorhead of California. Mr. Chairman, I move to strike the
last word, and I rise in opposition to this amendment.

Mr. Chairman, this amendment would completely take away from
the President the flexibility of acting in times of crisis or an emer-
gency. I think there was one particular emergency that was declared
by a very well known President at an important time, and that was
President Roosevelt's declaration of the banking holiday. If that had
been triggered by Congressional debate and it required 30 days or so
of debate before it could be put into effect, all the good that could
have been done would have been wiped out and the whole thing would
have gone down the tube before we had ever begun.

Mr. Chairman, it is important that we give our President some flexi-
bility from time to time. This bill gives the Congress the right to wipe
out those emergencies on a moment's notice if we decide it is in the
best interest to do so. But let us at least leave the President the con-
stitutional authority he has to protect this country in times of need.

Mr. Chairman, I ask for a no vote.

Mr. Conyers. Mr. Chairman, I move to strike the requisite number
of words.

Mr. Chairman, my final participation in this debate revolves around
the reason of this question: 'What happens if the President of the
United States vetoes the congressional termination of the emergency
power? Is that contemplatable within the purview of this legislation?

I direct the question to the Chairman.

Mr. Flowers. Mr. Chairman, will the gentleman yield?

Mr. Conyers. I yield to the gentleman from Alabama.

Mr. Flowers. Mr. Chairman, on the advice of counsel we have
researched that thoroughly. A concurrent resolution would not require
Presidential signature of acceptance.

It would be an impossibility that it would be vetoed.

Mr. Conyers. So there would be no way that the President could
interfere with the Congress ?

Mr. Flowers. The gentleman is correct.

Mr. Conyers. Mr. Chairman, I thank the gentleman.

The Chairman. The question is on the amendment offered by the
gentleman from Massachusetts (Mr. Drinan) .

The amendment was rejected.

The Chairman. Under the rule, the Committee rises.

Accordinglv the Committee rose; and the Speaker pro tempore (Mr.
McFall) having assumed the chair, Mr- Eoncalio, Chairman of the
Committee of the Whole House on the State of the Union, reported
that the Committee having had under consideration the bill (H.R.

281

3884) to terminate certain authorities with respect to national emer-
gencies still in effect, and to provide for orderly implementation and
termination of future national emergencies, pursuant to House Resolu-
tion 524, he reported the bill back to the House with sundry amend-
ments adopted by the Committee of the Whole.

The Speaker pro tempore. Under the rule, the previous question is
ordered.

Is a separate vote demanded on any amendment ? If not, the Chair
will put them en gros.

The amendments were agreed to.

The Speaker, pro tempore. The question is on the engrossment and
third reading of the bill.

The bill was ordered to be engrossed and read a third time, and was
read the third time.

The Speaker pro tempore. The question is on the passage of the
bill.

The question was taken: and the Speaker pro tempore announced
that the ayes appeared to have it.

Mr. Flowers. Mr. Speaker, on that I demand the yeas and nays.

The yeas and nays were ordered.

The vote was taken by electronic device and there were — yeas 388,
nays 5, not voting 40, as follows :

[Roll No. 494]

YEAS— 388

Abdnor

Boggs

Clawson, Del

Abzug

Boland

Clay

Adams

Boiling

Cleveland

Addabbo

Bonker

Cochran

Alexander

Bowen

Cohen

Ambro

Brademas

Collins, 111.

Anderson, Calif.

Breaux

Collins, Tex.

Anderson, 111.

Breckinridge

Conable

Andrews, N.C.

Brinkley

Conlan

Andrews. X. Dak.

Brodhead

Conte

Annunzio

Brooks

Corman

Archer

Broomfield

Cornell

Armstrong

Brown, Calif.

Cotter

Ashbrook

Brown, Mich.

Coughlin

Ashley

Brown, Ohio

Crane

A spin

Brojhill

D'Amours

AuCoin

Buchanan

Daniel, Dan

Badillo

Burgener

Daniel, R. W.

Bafalis

Burke, Calif.

Daniels, X.J.

Baldus

Burke, Mass.

Danielson

Barrett

Burleson, Tex.

Davis

Baucus

Burlison, Mo.

de la Garza

Bauman

Burton, John

Delaney

Beard, R.I.

Burton, Phillip

Dent

Beard, Tenn.

Butler

Derrick

Bedell

Byron

Devine

Bell

Carney

Dingell

Bennett

Carr

Dodd

Bergland

Carter

Downey, X.Y.

Bevill

Casey

Downing, Va.

Biaggi

Cederberg

Duncan, Tenn

Bingham

Chappell

du Pont

Blanchard

Chisholm

Early

Blouin

Clancy

Eckhardt

282

Edgar

Edwards, Ala.

Edwards, Calif.

Eilberg

Emery

English

Erlenborn

Esch

Eshleman

Evans, Colo.

Evans, Ind.

Fascell

Fenwick

Findley

Fish

Fisher

Flood

Florio

Flowers

Flynt

Foley

Ford, Mich.

Ford, Tenn.

Fountain

Frenzel

Frey

Fuqua

Gaydos

Giaimo

Gibbons

Gilman

Ginn

Goldwater

Gonzalez

Goodling

Gradison

Grassley

Green

Gude

Guyer

Hagedorn

Haley

Hall

Hammerschmidt

Hanley

Hannaford

Hansen

Harkin

Harrington

Harris

Harsha

Hastings

Hawkins

Hayes, Ind.

Hays, Ohio

Hechler, W. Va.

Heckler, Mass.

Hefner

Heinz

Helstoski

Henderson

Hicks

Hightower

Hillis

Hinshaw

Holland

Holt

Horton

Howe

Hubbard

Hughes

Hutchinson

Hyde

I chord

Jacobs

Jeffords

Jenrette

Johnson, Calif.

Johnson, Colo.

Johnson, Pa.

Jones, Ala.

Jones, N.C.

Jones, Okla.

Jones, Tenn.

Karth

Kasten

Kastenmeier

Kazen

Kelly

Kemp

Ketchum

Keys

Kindness

Koch

Krebs

Krueger

LaFalce

Lagomarsino

Latta

Leggett

Lehman

Lent

Levitas

Litton

Lloyd, Calif.

Lloyd, Tenn.

Long, La.

Lott

Lujan

McCloskey

McCollister

McDade

McDonald

McFall

McHugh

McKinney

Macdonald

Madden

Madigan

Maguire

Mahon

Mann

Martin

Matsunaga

Mazzoli

Meeds

Melcher

Metcalfe

Meyner

Mezvinsky

Michel

Mikva

Milford

Miller, Calif.

Miller, Ohio

Mills

Mineta

Minish

Mink

Mitchell, Md.

Mitchell, N.Y.

Moakley

Moffett

Mollohan

Montgomery

Moore

Moorhead, Calif.

Moorhead, Pa.

Morgan

Mosher

Mottl

Murphy, 111.

Murphy, N.Y.

Murtha

Myers, Ind.

Myers, Pa.

Natcher

Neal

Nichols

Nix

Nolan

Nowak

Oberstar

Obey

O'Brien

O'Hara

O'Neill

Ottinger

Passman

Patman, Tex.

Patterson, Calif.

Pattison, N.Y.

Perkins

Pettis

Pickle

Pike

Poage

Pressler

Preyer

Price

Quie

Quillen

Railsback

Randall

Rangel

Rees

Regula

Reuss

Rhodes

Richmond

Rinaldo

Roberts

Robinson

Rodino

Rogers

Roncalio

Rooney

Rose

283

Rosenthal

Smith, Nebr.

Vander Jagt

Rostenkowski

Snyder

Vander Veen

Roush

Spellman

Vanik

Rousselot

Spence

Vigorito

Rojbal

Staggers

Waggonner

Runnels

Stanton, J. William

Wampler

Ruppe

Stanton, James V.

Waxman

Russo

Stark

Weaver

Ryan

Steed

Whalen

St Germain

Steelman

White

Santini

Steiger, Ariz.

Whitehurst

Sarasin

Steiger, Wis.

Whitten

Sarbanes

Stephens

Wiggins

Satterfield

Stokes

Wilson, Bob

Scheuer

Stratton

Wilson, C. H.

Schneebeli

Studds

Winn

Schroeder

Sullivan

Wirth

Schulze

Symington

Wolfe

Sebeliun

Symms

Wright

Seiberling

Talcott

Wydler

Sharp

Taylor, Mo.

Wylie

Shipley

Taylor, N.C.

Yates

Shriver

Teague

Yatron

Sinister

Thone

Young, Fla.

Sikes

Thornton

Young, Ga.

Simon

Traxler

Young, Tex.

Sisk

Treen

Zablocki

Skubitz

Tsongas

Zeferetti

Slack

Udall

Smith, Iowa

Ullman

XAYS— 5

Conyers

Drinan

Moss

Dellums

Holtzman

NOT VOTING— 40

Biester

Howard

Peyser

Burke, Fla.

Hungate

Pritchard

Clausen, Don H.

Jarman

Riegle

Derwinski

Jordan

Risenhoover

Dickinson

Landrum

Roe

Diggs

Long, Md.

Solarz

Duncan, Oreg.

McClory

Stuckey

Evins, Tenn.

McCormack

Thompson

Fary

McEwen

Van Deerlin

Fithian

McKay

Walsh

Forsythe

Ma this

Wilson, Tex.

Fraser

Xedzi

Young, Alask

Hamilton

Patten, N.J.

Hebert

Pepper

So the bill was passed.

The Clerk announced the following pairs

Mr. Hebert with Mr. Duncan of Oregon.

Mr. Stuckey with Mr. Riegle.

Mr. Hamilton with Mr. Charles Wilson of Texas.

Mr. Thompson with Mr. Fithian.

Mr. Fary with Mr. Biester.

Mr. McCormack with Ms. Jordan.

Mr. Nedzi with Mr. Long of Maryland.

Mr. Pepper with Mr. Don H. Clausen.

Mr. Patten with Mr. Forsythe.

Mr. Roe with Mr. McClory.

Mr. Solarz with Mr. McKav.

284

Mr. Fraser with Mr. Dickinson.

Mr. Van Deerlin with Mr. Burke of Florida.

Mr. Diggs with Mr. Howard.

Mr. Evins of Tennessee with Mr. Jarman.

Mr. Risenhoover with Mr. McEwen.

Mr. Landrum with Mr. Derwinski.

Mr. Mathis with Mr. Peyser.

Mr. Hungate with Mr. Pritchard.

Mr. Walsh with Mr. Young of Alaska.

The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.

General Leave

Mr. Flowers. Mr. Speaker, I ask unanimous consent that all Mem-
bers may have five legislative days in which to revise and extend their
remarks on the bill just passed.

The Speaker. Is there objection to the request of the gentleman
from Alabama.

There was no objection.

INTRODUCTION OF S. 977, 94TH CONGRESS

[Congressional Record — v. 121, Mar. 6, 1975 — p. S3202]
By Mr. MATHIAS (for himself and Mr. Church)

S. 977. A bill to terminate certain authorities with respect to national
emergencies still in effect, and to provide for orderly implementation and
termination of future national emergencies. Referred to the Committee on
Government Operations.

National Emergencies Act

Mr. Mathias. Mr. President two years ago the Senate created the
Special Committee on the Termination of the National Emergency to
examine the state of emergency which then existed and to provide a
regular and constitutional process to meet future needs. Sena-
tor Church and I were named cochairmen of the only bipartisan com-
mittee in the Senate, and Senators Hart, Pell, Stevenson. Case,
Pearson, and Hansen were named Committee members.

The Committee concluded that not one, but four national emergen-
cies exist and continue to this day. Moreover, we discovered that emer-
gency powers exist in more than 470 separate statutes and, when
combined, give the President potential dictatorial powers. It seemed
appropriate to change the name of the Committee to its present title,
the Special Committee on National Emergencies and Delegated Emer-
gency Powers and to consider remedial legislation.

Last year the Special Committee submitted to the Senate Govern-
ment Operations Committee S. 3957. This bill defined a national
emergency, removed obsolete statutes from the books, continued six
statutes in their present status, and placed the remainder of the emer-
gency powers under special procedures which insure that adequate
notice exists of Presidential action invoking emergency powers and
that there is created in Congress the right to terminate such emer-
gencies by concurrent resolution. Moreover, procedures would be estab-
lished by the law which would encourage the Congress to consider
and vote every 6 months on whether a state of national emergency
should or should not be continued.

S. 3957 was favorably recommended to the Senate by the Govern-
ment Operations Committee and passed the Senate unanimously on
October 7. It had been the intention of the chairman of the House
Judiciary Committee to hold early hearings in the House so that the
National Emergencies Act might become law in the last session of
Congress. The impeachment hearings and the nomination of Vice
President Rockefeller prevented the Committee from realizing this
hope.

Senator Church and I have now met with the chairman, Repre-
sentative Rodino. and the subcommittee chairman. Representa-
tive Walter Flowers, to determine how the Act might be given early

">85)

286

and favorable consideration. The House committee leaders have been
most helpful and have scheduled the first hearing today.

I now have the pleasure of introducing the National Emergencies
Act for consideration in this Congress. The version I lay before the
Senate is nearly identical to S. 3957 and is identical to the version
introduced in the House last week. Two minor technical amendments
have been made.

It is my hope that we will soon see the enactment into law of this
legislation. I ask that this bill be appropriately referred.

TEXT OF S. 977, 94th CONGRESS

A BILL To terminate certain authorities with respect to national emergencies still in
effect, and to provide for orderly implementation and termination of future national
emergencies

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "National
Emergencies Act".

TITLE I— TERMINATING EXISTING DECLARED EMERGENCIES

Sec. 101. (a) All powers and authorities possessed by the President, any
other officer or employee of the Federal Government, or any Executive agency,
as defined in section 105 of Title 5, United States Code, as a result of the existence
of any declaration of national emergency in effect on the date of enactment of
this Act are terminated one year from the date of such enactment. Such termina-
tion shall not affect —

(1) any action taken or proceeding pending not finally concluded or deter-
mined on such date ;

(2) any action or proceeding based on any act committed prior to such
date ; or

(3) any rights or duties that matured or penalties that were incurred
prior to such date.

TITLE II— DECLARATIONS OF FUTURE NATIONAL EMERGENCIES

Sec. 201. (a) In the event the President finds that a proclamation of a national
emergency is essential to the preservation, protection and defense of the Consti-
tution or to the common defense, safety, or well-being of the territory or people
of the United States, the President is authorized to proclaim the existence of a
national emergency. Such proclamation shall immediately be transmitted to the
Congress and published in the Federal Register.

(b) Any provisions of law conferring powers and authorities to be exercised
during a national emergency shall be effective and remain in effect (1) only when
the President (in accordance with subsection (a) of this section), specifically
declares a national emergency, and (2) only in accordance with this Act. No
law enacted after the date of enactment of this Act shall supersede this title
unless it does so in specific terms, referring to this title, and declaring that the
new law supersedes the provisions of this title.

Sec 202 (a) Any national emergency declared by the President in accordance
with this title shall terminate if —

( 1 ) Congress terminates the emergency by concurrent resolution ; or

(2) the President issues a proclamation terminating the emergency.

At the end of each year following the declaration of an emergency which is still
in effect, the President shall publish in the Federal Register and transmit to the
Congress a notice stating that the emergency is still in effect. Any national emer-
gency declared by the President shall be terminated on the datespecified in anv
concurrent resolution referred to in clause (1) of this subsection, and any
powers or authorities exercised by reason of said emergency shall cease to be
exercised after such specified date, except that such termination shall not affect—

(A) any action taken or proceeding pending not finally concluded or
determined on such date;

(B) any action or proceeding based on any act committed prior to such
date; or

(287)

288

(c) (1) A concurrent resolution to terminate a national emergency declared
by the President shall be referred to the appropriate committee of the House of
Representatives or the Senate, as the case may be. One such concurrent resolu-
tion shall be reported out by such committee together with its recommendations
within fifteen calendar days, unless such House shall otherwise determine by
the yeas and nays.

(2) Any concurrent resolution so reported shall become the pending business
of the House in question (in the case of the Senate the time for debate shall be
equally divided between the proponents and the opponents) and shall be voted
on within three calendar days thereafter, unless such House shall otherwise
determine by yeas and nays.

(3) Such a concurrent resolution passed by one House shall be referred to
the appropriate committee of the other House and shall be reported out by
such committee together with its recommendations within fifteen calendar days
and shall thereupon become the pending business of such House and shall be
voted upon within three calendar days, unless such House shall otherwise
determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with
respect to a concurrent resolution passed by both Houses, conferees shall be
promptly appointed and the committee of conference shall make and file a
report with respect to such concurrent resolution within six calendar days after
the legislation is referred to the committee of conference. Notwithstanding any
rule in either House concerning the printing of conference reports in the Record
or concerning any delay in the consideration of such reports, such report shall
be acted on by both Houses not later than six calendar days after the conference
report is filed. In the event the conferees are unable to agree within forty-eight
hours, they shall report back to their respective Houses in disagreement.

(5) Paragraph (l)-(4) of this subsection, subsection (b) of this section, and
section 602(b) of this Act are enacted by Congress —

(A) as an exercise of the rulemaking power of the Senate and the House
of Representatives, respectively, and as such they are deemed a part of the
rules of each House, respectively, but applicable only with respect to the
procedure to be followed in the House in the case of resolutions described
by this subsection ; and they supersede other rules only to the extent that
they are inconsistent therewith ; and

TITLE III— DECLARATIONS OF WAR BY CONGRESS

Sec. 301. Whenever Congress declares war, any provisions of law conferring
powers and authorities to be exercised during time of war shall be effective from
the date of such declaration.

TITLE IV— EXERCISE OF EMERGENCY POWERS AND AUTHORITIES

Sec 401. When the President declares a national emergency no powers or au-
thorities made available by statute for use in the event of an emergency shall
be exercised unless and until the President specifies the provisions of law under
which he proposes that he, or other officers will act. Such specification may be
made either in the declaration of a national emergency, or by one or more con-
temporaneous or subsequent Executive orders published in the Federal Register
and transmitted to the Congress.

TITLE V— ACCOUNTABILITY AND REPORTING REQUIREMENTS
OF THE PRESIDENT

289

mations, and each such Executive agency shall maintain a file and index of
all rules and regulations, issued during such emergency or war issued pursuant
to such declarations.

TITLE VI— REPEAL AND CONTINUATION OF CERTAIN EMERGENCY
POWER AND OTHER STATUTES

Sec. 601. (a) Section 349(a) of the Immigration and Nationality Act (8 U.S.C.
1481(a)) is amended —

(1) at the end of paragraph (9), by striking out "; or" and inserting in
lieu thereof a period ; and

(2) by striking out paragraph (10).

(b) Section 2667(b) of Title 10 of the United States Code is amended—

(1) by inserting "and" at the end of paragraph (3) ;

(2) by striking out paragraph (4) ; and

(3) by redesignating paragraph (5) as (4).

(c) The joint resolution entitled "Joint resolution to authorize the temporary
continuation of regulation of consumer credit," approved August 8, 1947 (12
U.S.C. 249), is repealed.

(d) Section 5(m) of the Tennessee Valley Authority Act of 1933 (16 U.S.C.
831 (m) ) is repealed.

i <■ ) Section 1383 of Title 18, United States Code, is repealed.

( f ) Section 6 of the Act entitled "An Act to amend the Public Health Service
Act in regard to certain matters of personnel and administration, and for other
purposes," approved February 28, 1948, is amended by striking out subsections
(b), (c), (d), (e),and (f) (42 U.S.C. 211b).

(g) Section 9 of the Merchant Ship Sales Act of 1946 (50 U.S.C. App. 1742)
is repealed.

(h) This section shall not affect —

( 1 ) any action taken or proceeding pending not finally concluded or de-
termined at the time of repeal ;

(2) any action or proceeding based on any act committed prior to repeal;
or

(3) any rights or duties that matured or penalties that were incurred prior
to repeal.

Sec 602. (a) The provisions of this Act shall not apply to the following pro-
visions of law, the powers and authorities conferred thereby, and actions taken,
thereunder :

(1) Section 5(b) of the Act of October 6, 1917, as amended (12 U.S.C.
95(a) ; 50 U.S.C. App. 5(b)) ;

(2) Section 673 of Title 10, United States Code ;

(3) Act of April 28, 1942 (40 U.S.C. 278b) ;

(4) Act of June 30, 1949 (41 U.S.C. 252) ;

(5) Section 3477 of the Revised Statutes, as amended (31 U.S.C. 203) ;

(6) Section 3737 of the Revised Statutes, as amended (41 U.S.C. 15).
(1)) Each committee of the House of Representatives and the Senate having

jurisdiction with respect to any provision of law referred to in subsection (a)
(l)-(6) of this section shall make a complete study and investigation concern-
ing that provision of law and make a report, including any recommendations
and proposed revisions it may have, to its respective House of Congress within
two hundred and seventy days after the date of enactment of this Act.

290

Calendar No. 1102

D4th Congress ) SENATE f IteGar

2d Session f 1 No. 94-116*

NATIONAL EMERGENCIES ACT

August 26, 1976. — Ordered to be printed

Mr. RmicoiT, from the Committee on Government Operations,

submitted the following

REPORT

[To accompany H.R. 3884]

The Committee on Government Operations, to which was referred
the bill (H.R. 3884) to terminate certain authorities with respect to
national emergencies still in effect, and to provide for orderly imple-
mentation and termination of future national emergencies, having
considered the same, reports favorably thereon with amendments and
recommends that the bill as amended do pass.

The amendments are as follows :

On page 2, strike out lines 16 through 23, and insert in lieu thereof
the following :

Sec. 201(a) With respect to Acts of Congress authorizing
the exercise, during the period of a national emergency, of
any special or extraordinary power, the President is author-
ized to declare such national emergency. Such proclamation
shall immediately be transmitted to the Congress and pub-
lished in the Federal Register.

On page 3, line 18, after "subsection," insert "whichever date is
earlier,".

On page 4, line 14, strike the word "days," and insert "days after
the day on which such resolution is referred to such committee,".

On page 4, line 20, strike the word "thereafter," and insert in lieu
thereof "after the day on which such resolution is reported,".

On page 4, line 25, after the word "days" insert "after the day on
which such resolution is referred to such committee".

On page 5, line 2, strike the word "days," and insert "days after the
day on which such resolution is reported,".

On page 5, lines 9 and 10, strike out "after the legislation is referred
to the committee of conference." and insert in lieu thereof "after the

(1)

291

day on which managers on the part of the Senate and the House have
been appointed.".

On page 5, lines 11 and 12, strike out "in the Hecord".

On page 5, line 15, strike the word "filed." and insert "filed in the
House in which such report is filed first.".

On page 5, line 19, strike out "602(b)" and insert in lieu thereof
"502(b)".

On page 6, line 15, strike out "the emergency is still in effect." and
insert in lieu thereof "such emergency is to continue in effect after
such anniversary.".

On page 6, lines 18 and 19, strike the word "emergency", and insert
the word "emergency,".

On page 10, line 12, strike out "it" and insert in lieu thereof "such
committee".

Purpose

The purpose of H.K. 3884 is to terminate, as of 2 years from the
date of enactment, powers and authorities possessed by the Executive
as a result of existing states of national emergency, and to establish
authority for the declaration of future emergencies in a manner which
will clearly define the powers of the President and provide for regular
congressional review.

In order to carry out this purpose, the National Emergencies Act
would :

(1) Terminate, as of 2 years from the date of enactment, pow-
ers and authorities available to the Executive, pursuant to ap-
proximately 470 statutes, as a result of the states of national
emergency now in force ;

(2) Provide for congressional review of future Presidential
declarations of national emergencies no less frequently than every
6 months and congressional termination of states of emergency
at any time by concurrent resolution ;

(3) Provide for congressional oversight of and accountability
for actions taken by the Executive in the exercise of delegated
emergency powers ;

(4) Repeal specific obsolete emergency powers statutes and
retain in force certain statutes deemed necessary for ongoing op-
erations of the government.

Enactment of this legislation would end the states of emergency
under which the United States has been operating for more than 40
years. It would also insure that the extraordinary powers which now
reside in the hands of the Chief Executive — powers delegated by
the Congress to seize property and commodities, organize and control
the means of production, assign military forces abroad and restrict
travel — could be utilized only when emenrencies actually exist, and
then, only under safeguards of congressional review. Reliance on
emergency authority, intended for use in crisis situations would no
longer be available in non-crisis situations. At a time when govern-
ments throughout the world are turning with increasing desperation
to an all-powerful executive, this legislation is designed to insure that
the United States travels a road marked by carefully constructed legal
safeguards.

292

Committee Amendments

The committee adopted one substantive and several technical
amendments to H.R. 3884, as passed by the House of Representatives.

With respect to the substantive amendment, following consultations
with several constitutional law experts, the committee concluded that
section 201(a) is overly broad, and might be construed to delegate ad-
ditional authority to the President with respect to declarations of
national emergency. In the judgment of the committee, the language
of this provision was unclear and ambiguous and might have been con-
strued to confer upon the President statutory authority to declare
national emergencies, other than that which he now has through vari-
ous statutory delegations.

The Committee amendment clarifies and narrows this language. The
Committee decided that the definition of when a President is author-
ized to declare a national emergency should be left to the various
statutes which give him extraordinary powers. The National Emer-
gencies Act is n6t intended to enlarge or add to Executive power.
Rather the statute is an effort by the Congress to establish clear proce-
dures and safeguards for the exercise by the President of emergency
powers conferred upon him by other statutes.

Therefore, the Committee amendment makes no attempt to define
when a declaration of national emergency is proper. The amendment
simply requires the President to transmit to the Congress and publish
in the Federal Register a Presidential declaration of national emer-
gency authorized by other Acts of Congress.

The principal technical amendments adopted by the committee are
contained in those portions of section 202 which set forth the proce-
dures and time sequences to be followed by both Houses in considering
and taking action with respect to declarations of national emergency.
A perfecting amendment in section 202(c) (5) would correct a print-
ing error by changing a reference to section 602(b) to section 502(b).
Additional technical and perfecting amendments are contained in
sections 301 and 502(b). None of the technical and perfecting amend-
ments make any substantive changes.

Statement

Title I of H.R. 3884 provides for the termination of all existing
powers and authorities based on any general declaration of national
emergency in effect on the date of enactment, to take effect 2 years
from the date of enactment of the legislation. The 2-year delay is
designed to provide time for all executive agencies, offices, and depart-
ments, dependent on emergency statutes for their day-to-day opera-
tions, to seek permanent legislation, if appropriate. It would permit
an orderly transition and give the Congress adequate opportunity to
evaluate executive requests.

Exempted from the general termination provision are (1) any ac-
tion taken, or proceeding pending, not finally concluded or determined
on such date; (2) any action or proceeding based on any act com-
mitted prior to such date; and (3) any rights or duties that have ma-
tured or penalties that were incurred prior to such date. These exemp-

293

tions are to be narrowly construed to cover only pending legal actions
or administrative proceedings based upon an action taken while the
declaration of a national emergency was in effect, and the right to
bring legal actions or administrative proceedings as a result of actions
taken while the declaration of national emergency was in effect.

Thus, the termination of a declaration of national emergency would
not prohibit legal action against a person or persons for conduct
in violation of an emergency statute if the conduct occurred while
the declaration of national emergency was in effect. The termination
of an emergency power which is a subject of a court action still
terminates that power but it does not affect the validity of that pend-
ing court action. Thus the emergency powers are terminated but not
court proceedings based upon actions taken while those powers were
still in effect.

Title I pertains solely to powers and authorities based on a Presi-
dential declaration of emergency issued prior to the date of enact-
ment of the bill. It does not affect laws, such as the Defense Produc-
tion Act, which are not dependent upon a Presidential declaration of
emergency — even though such laws may be referred to in a general
sense as "emergency" statutes.

Title II concerns the declaration and termination of future national
emergencies. The provisions of title II, together with those of titles
III and IV, are designed to insure congressional oversight of Presi-
dential actions pursuant to declarations of a national emergency au-
torized by an act of Congress. While the War Powers Act, (Public
Law 93-148), established oversight powers and procedures with re-
spect to the commitment of our armed forces absent a congressional
declaration of war, no such oversight has existed to date with respect
to other presidential actions taken pursuant to declarations of na-
tional emergency. Therefore, the Special Committee on National Emer-
gencies recommended the remedial action contained in this statute.
While these procedures are patterned after those in the War Powers
Act, this statute is not intended to conflict with, supersede, or alter
any part of the War Powers Act.

Section 201(a) provides that, with respect to Acts of Congress
authorizing the exercise, during the period of a national emergency,
of any special or extraordinary power, the President is authorized to
declare such national emergency. Such proclamation must be immedi-
ately transmitted to the Congress and published in the Federal Regis-
ter. This section is clearly not intended to grant additional authority
to the President. The President can only exercise those powers dele-
gated to him in other statutes. The circumstances authorizing a decla-
ration of national emergency are defined by the statutes giving the
President the extraordinary powers to use in the case of a national
emergency. The purpose of this statute is to prescribe the procedures
to be followed in the event that the President proclaims a national
emergency, as authorized by some other statute.

The provisions of this bill are not meant to supersede existing pro-
visions of law which authorize declarations of emergency by the
Congress. The legislation is directed solely to Presidential declara-
tions of emergency.

Emergency authorities will come into effect only if the President
complies with the provisions of this act. Section 201(a) requires

294

that any Presidential declaration of an emergency be immediately
transmitted to the Congress and published in the Federal Register.
Section 201(b) states that the statutes granting powers to the Presi-
dent in time of emergency shall have effect only during times the
President has declared a national emergency and then only if he has
acted in accordance with the provisions of the act. This latter stipula-
tion has particular reference to the provisions of section 301 which
require that the President specify the laws he or other officers will
utilize. Another provision of section 201(b) states that no subsequent
enactment will supersede the title unless it does so in specific terms.

Section 202(a) provides for the termination of presidentially de-
clared emergencies by either a concurrent resolution of the Congress
or a proclamation by the President. Both the Congress and the Presi-
dent have terminated such emergencies in the past, but the absence
of specific statutory procedures has resulted in the failure to terminate
the declarations of emergency issued in 1933, 1950, 1970, and 1971.
The exceptions to the termination provision for court proceedings are
identical to those in section 101(a) discussed above.

Section 202(d) provides for the automatic termination of an emer-
gency if the President does not publicly renew the emergency by
means of the publication required oy this section.

Subsections (b) and (c) of section 202 establish procedures to in-
sure congressional consideration of a concurrent resolution which
would terminate a national emergency. The provisions are similar to
those set out in secton 7 of Public Law 93-148, the War Powers Act,
of November 7, 1973. Not later than 6 months after a national emer-
gency is declared and not later than the end of each 6-month period
thereafter that such emergency continues, each House of the Congress
must meet to consider a vote on a concurrent resolution to determine
whether that emergency should be terminated. As stated above, while
these procedures are patterned after those in the War Powers Act,
this statute is not intended to conflict with, supersede or alter any part
of the War Powers Act.

Section 202(c) sets forth procedures to be followed in considering
the concurrent resolution. The provisions which guarantee prompt
congressional action are stated to be an exercise of the rulemaking
power of the House and Senate.

Title III states that when the President declares a national emer-
gency, no powers and authorities made available by statute for use in
an emergency shall be exercised unless and until the President specifies
the provisions of law under which he or other officers will aet. Under
existing laws, a Presidential emergency declaration automatically
activates emergency provisions throughout the United States Code,
regardless of the relevance of the statute to the emergency at hand.
The new procedure permits the Executive to invoke only the emer-
gency provisions he needs without bringing into force an entire body
of law, and insures that the Congress and the public will know what
statutes are brought into force.

Title IV specifies the accountability and reporting requirements ap-
plicable during a time of national emergency. The President is re-
quired to maintain a file of significant orders, and executive agencies
are required to keep a record of rules and regulations issued pursuant
±o a declaration of emergency. This information is to be promptly

S. Kept 94-1168— 76 ^^ g -

295

transmitted to the Congress. In addition, the President is required to
report emergency expenditures every 6 months. To provide time for a
complete accounting of expenditures, the bill provides the Executive
with 90 days from the end of each 6-month period to file his report
in which he is expected to explain the nature of and authority for the
expenditures.

In a letter to the committee, Mr. William Colby, then "Director of
the CIA, suggested that the Central Intelligence Agency would not
be bound by the reporting requirements of this title. The committee
does not acknowledge the existence of such an exemption. The need
of the CIA for security and confidentiality can be respected by the
Congress as much under this authority as under any other. The act
specifically recognizes the need to "assure confidentiality where appro-
priate." The committee believes the CIA can comply with the require-
ment of the act by reporting to its oversight committee or committees.
(Copies of Mr. Colby's letter and Senator Church's response, directed
to Senator Ribicoff, are set forth in Appendix A of this report.)

Title V deals with the repeal and continuation of certain emergency
powers and statutes. Section 501 provides for the repeal or amend-
ment of eight existing laws which have been found to be superseded
or obsolete. The provisions of section 501 are as follows:

Subsection (a) strikes paragraph 10 of section 349(a) of the
Immigration and Nationality Act, which provides for the ex-
patriation of persons remaining outside the jurisdiction of the
United States in time of war or national emergency to avoid
service in the military. The Supreme Court in Kennedy v. Men-
doza Martinez, 372 U.S. 144 (1963), declared the authority to be
unconstitutional.

Subsection (b) deletes clause 4 of section 2667(b) of title 10,
which requires that leases of nonexcess property of a military de-
partment must include a provision making: the lease revocable
during a national emergency. The change allows military depart-
ments the option to decide whether to include a provision making
leases of nonexcess property revocable during a national emer-
gency declared by the President.

Subsection (cj repeals a 1947 ioint resolution dealing with the
regulation of consumer credit. The provisions of the act are ob-
solete, since, under section 1904 of title 12, the President is
empowered to authorize the Board of Governors of the Federal
Reserve System to regulate extensions of credit.

Subsection (d) repeals section 5(m) of the Tennessee Valley
Authority Act of 1933, which bars the sale of TVA products out-
side of the United States except to the Government for military
use or to its allies in case of war or until six months after the
termination of the Korean emergency. The committee has been
advised that the provisions of subsection (m) have no present
application.

Subsection (e) repeals section 1383 of title 18, which provides
criminal penalties for persons entering, remaining in, leaving, or
committing any act in a military area or military zone contrary
to applicable restrictions prescribed by Executive Order or the

66-474 O - 76 - 20

296

Secretary of the Army where it appears that the individual knew
of the restrictions and acted in violation thereof. This authority
permits the President to establish defensive land areas, such as
occurred when Americans of Japanese ancestry were interned
during World War II. The recommendation that section 1383 be
repealed stems from the committee's conviction that such powers
are inappropriate in peacetime and that repeal is consistent with
previous congressional action.

Subsection (f) strikes subsections (b), (c), (d), (e) ? and (f)
of section 6 of the act of February 28, 1948, the Public Health
Service Act, which deals with the promotion of Public Health
Service officers. The committee was advised that the provisions
are obsolete.

Subsection (g) repeals section 9 of the 1946 Merchant Ship

Sales Act, which "deals with price adjustment for prior sales to

citizens of the United States. The committee has been advised that

the section has no current application.

Section 502 exempts certain provisions of law from the force of the

legislation, subject to further investigation by the standing committees

of the House and Senate.

The exempted laws were enacted to meet emergency situations. Be-
cause of the prolongation of emergency rule in the United States, many
government departments have come to depend on these laws for their
day-to-day operations. As a result, abrupt termination of such pro-
visions would disrupt activities deemed to be essential to the function-
ing of the government. To avoid such disruption and to allow careful
consideration of the statutes in question and enactment of permanent
law where appropriate, the committee recommends that these au-
thorities be exempted from the effect of the legislation.

Under section 502(a), the following provisions of law are exempted
from the force of this act :

Clause 1 lists section 5(b) of the act of October 6, 1917, the
Trading with the Enemy Act [12 U.S.C. 95a and 50 U.S.C. App.
5(b)]. At hearings, administration spokesmen cited the continu-
ing importance of section 5(b) which provides for the adminis-
tration and regulation of both transactions in foreign exchange
of gold and silver and property transfers in which any foreign
country or national thereof has an interest".

Clause 2 continues in effect the provisions of the act of April 28,
1942 (40 U.S.C. 278b). This act provides for an exception to the
existing provisions of law concerning maximum rental of leases
in cases relating to vital leases during a war or national emer-
gency. The GSA requested the continuation of the authority until
permanent legislation to the same effect can be enacted.

Clause 3 continues in effect the provisions of the act of June 30,
1949 (41 U.S.C. 252). Subsection (c) (1) of the act contains an ex-
ception to a requirement of advertising purchases or contracts
when it is determined to be in the public interest during a period
of national emergency. The GSA requested extension of this
authority.

297

Clauses 4 and 5 continue in effect sections 3477 and 3737 of the
Revised Statutes (31 U.S.C. 203 and 41 U.S.C. 15). Both sections
concern the assignment of claims. The GSA requested continua-
tion of the authorities since they have proven important in the
financing of government contracts. These sections permit claims
for money due or to become due a contractor with the government
to be assigned to a bank, trust company or other financial
institution.

Clauses 6 and 7 extend the authoritv provided in Public Law
85-804 (50 U.S.C. 1431-1435) and section 2304(a) (1) of title 10,
United States Code. The authorities concern the amendment of
military contracts and the suspension of normal bidding require-
ments.

Clause 8 continues the provisions set forth in sections 3313, 6386
(c) , and 83l£ of title 10, United States Code. These three sections
provide the authority to maintain MIAs on active duty until their
status is finally determined.
In section 502(b) the appropriate standing committees of the House
and Senate are directed to investigate the authorities continued in sec-
tion 502(a) and to make recommendations with respect thereto within
270 days following the enactment of the National Emergencies Act.

The circumstances under which most of these laws were enacted,
and their subsequent usage often in ways not envisioned in the origi-
nal legislative histories, underline the necessity for immediate review
and evaluation of these statutes.

History of Legislation

At the beginning of the 92d Congress, interest was expressed in the
Senate in examining emergency powers available to the Executive.
Thereafter, Senator Charles McC. Mathias, Jr., introduced Senate
Concurrent Resolution 27 to establish a special joint committee to
study the effect of terminating the state of emergency declared by
President Truman in 1950 during the Korean War. In May 1972,
Senator Mathias and Senator Frank Church introduced a Senate res-
olution calling for the creation of a Senate Special Committee on the
Termination of the National Emergency. The resolution was subse-
quently approved, and the special committee began work on January
6, 1973. Senators Mathias and Church were designated as cochairmen,
and Senators Hart, Pell. Stevenson, Case, Pearson, and Hansen were
appointed to the committee. The mandate of the committee, as ex-
pressed in its authorizing resolution (S. Res. 9), was

to conduct a study and investigation with respect to the mat-
ter of terminating the national emergency proclaimed by the
President of the United States on December 16, 1950, as
announced in Presidential Proclamation Numbered 2914,
dated the same date.

Enlisting the aid of legal scholars, executive departments and agen-
cies, and the Library of Congress, the special committee launched an
extensive study. The committee held three sets of public hearings on the
history of emergency government in the United States and constitu-
tional problems created thereby.

298

The committee found that the whole field of emergency statutes and
procedures was in disarray. Four emergency proclamations, issued in
1933, 1950, 1970, and 1971, had never been revoked ; there was little
historical guidance for declaring, administering, or terminating states
of national emergency; and no current, comprehensive record of
statutes effective during times of emergency existed. The enlarged task
that the committee confronted led to its being redesignated the Special
Committee on National Emergencies and Delegated Emergency
Powers.

The committee has since issued several publications designed to
provide an understanding of national emergency laws and procedures
and provide the basis for legislation. One compilation provides a listing
of "Emergency Power Statutes: Provisions of Federal Law Now in
Effect Delegating to the Executive Extraordinary Authority in Time
of National Emergency" (S. Rept. 93-549). This report lists all the
statutes which could be utilized under a declaration of national emer-
gency as well as similar authority, not dependent on a declaration of
emergency. To make such a compilation, the committee relied upon
the Air Force's LITE system to conduct a computer search of the
United States Code and studied all 87 volumes of the statutes-at-large.

A second document, "Executive Orders in Times of War and Na-
tional Emergency," is the result of an examination of the collections of
proclamations and Executive orders found at the Library of Congress
and the Federal Register. In addition, "A Brief History of Emergency
Powers in the United States," prepared by the Library of Congress,
was issued as a committee print. The committee also published a hand-
book containing evaluations of all emergency statutes. These evalua-
tions were made by standing committees of the Senate and by executive
departments and agencies.

The culmination of the special committee's efforts was the National
Emergencies Act. Introduced by the Senate special committee on
August 2, 1974, S. 3957 was sponsored by Senators Church, Mathias,
Hart, Pell, Stevenson, Case, Pearson, Hansen, Ervin, Chiles, Williams,
Muskie, Javits, Ribicoff, and Roth. The Senate Committee on Govern-
ment Operations reported the bill without amendment on Septem-
ber 30, 1974 (S. Rept. 93-1193). On October 7, 1974, during debate
on the measure in the Senate, Senator Mathias offered amendments
incorporating changes recommended by the Office of Management and
Budget and agreed to by the Government Operations Committee. The
amendments provided for :

(1) Extension of the termination date for existing emergencies
from nine to twelve months from enactment ;

(2) A semiannual review and decision by Congress on whether
to end an emergency, rather than automatic termination of states
of emergency ;

(3) Reduction of the number of statutes to be repealed;

(4) Exemption of six statutes considered essential by the execu-
tive branch and provision for their review by appropriate con-
gressional committees ;

(5) Requirements for an accounting of expenditures incurred
in the exercise of national emergency statutes.

299

The amended legislation passed the Senate by voice vote on October
7, 1974, and was referred to the House Committee on the Judiciary
which took no further action. On March 6, 1975, Senator Mathias, for
himself and Senator Church, introduced S. 977, which is nearly identi-
cal to S. 3957 of the 93d Congress. At the same time, Representative
Rodino introduced an identical bill, H.R. 3884, which was referred to
the House Judiciary Committee. H.R, 3884 was amended by the House
Judiciary Committee and passed the House on September 4, 1975, with
some floor amendments.

Hearings

The committee held hearings on H.R. 3884 on February 25, 1976.
Senators Church and Mathias appeared in support of the measure.
Their testimony was related primarily to an analysis and summary of
the problems sought to be resolved by the legislation and a review of
their work as co-chairmen of the Senate Special Committee on Na-
tional Emergencies and Delegated Emergency Powers. In addition,
several communications relative to the measure were inserted in the
hearing record.

Section-By-Section Analysis

H.R. 3884, the National Emergencies Act, contains five titles.

TITLE I TERMINATING EXISTING DECLARED EMERGENCIES

Section 101 provides for the termination of all powers and authori-
ties conferred by statutes dependent upon a declared state of national
emergency. A 2-year delay in the effective date of the termination of
emergency powers and authorities is designed to allow time to enact
permanent law where needed. The section defines "any national emer-
gency in effect" as any one declared by the President.

TITLE II DECLARATIONS OF FUTURE NATIONAL EMERGENCIES

Subsection (a) of section 201 provides that with respect to Acts of
Congress authorizing the exercise, during a period of a national emer-
gency, of any special or extraordinary power, the President is author-
ized to declare such a national emergency. Any such proclamation
must be "transmitted to the Congress and published in the Federal
Register."

Subsection (b) declares that any statute that becomes effective in
time of declared national emergency, shall only be lawful if the pro-
visions of this act are complied with. No future act will supersede this
act unless it does so in specific terms and declares that the purposes of
the new law is to supersede provisions of this act.

Section 202 provides for the termination of a declared state of
emergency, either by the Congress by concurrent resolution, or by
Presidential proclamation. Congress would consider concurrent reso-
lutions at 6-month intervals. This section sets forth the procedures
to be followed by Congress in considering these resolutions, and pro-
vides that they are to be deemed a part of the rules of each House.
A final clause provides that any national emergency declared by the
President, not otherwise previously terminated, "shall terminate on

300

the anniversary of the declaration of that emergency if, within the
90-day period prior to each anniversary date, the President does not
publish in the Federal Register and transmit to the Congress a notice
stating that the emergency is still in effect."

TITLE m — EXERCISE OP EMERGENCY POWERS AND AUTHORITIES

Section 301 provides that when the President declares a national
emergency, no powers or authorities made available by statute shall
be exercised unless and until the President specifies the provisions of
law under which he will act. While specification may be made in the
declaration or in one or more contemporaneous or subsequent Execu-
tive orders, no powers may be made available until such specification.

TITLE IV — ACCOUNTABILITY AND REPORTING REQUIREMENTS OF
THE PRESIDENT

Section 401 provides that when the President declares a national
emergency, or the Congress declares war, the President shall main-
tain a file and index of all significant Presidential orders and each
executive agency shall maintain a file of all rules and regulations
issued during the emergency or war. These orders, rules, and regula-
tions are to be transmitted to the Congress. This section further re-
quires that, after the declaration of a national emergency or declara-
tion of war, the President shall transmit to the Congress, within 90
days after each 6-month period following a declaration, a report of
total expenditures which are attributable to powers and authorities
exercised under such declarations. A final report is required not later
than 90 days after the termination of the emergency or war.

TITLE V REPEAL AND CONTINUATION OF CERTAIN EMERGENCY POWER

AND OTHER STATUTES

Sections 501 and 502 repeal and continue in effect certain stated
emergency powers and other statutes as appropriate.

Agency Comments

Agency interests and concerns were coordinated by the special com-
mittee in connection with the drafting and consideration of the 93d
Congress bill, S. 3957, which passed the Senate in October 1974. Most
of the coordinating work was performed in cooperation with the Office
of Management and Budget and the Department of Justice.

In the 94th Congress, this committee solicited comments from vari-
ous agencies and departments. Where appropriate, some of their rec-
ommendations were incorporated in S. 977, the companion bill to
H.R. 3884. These comments are set forth in Appendix B. '

Estimated Cost of Legislation

It is not expected that enactment of this legislation will require any
significant additional expenditures.

301

Changes in Existing Law

In compliance with subsection 4 of rule XXIX of the Standing
Kules of the Senate, changes made by the bill as reported are shown
as follows (existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in which no
changes is proposed is shown in roman) :

TITLE 8— ALIENS AND NATIONALITY, UNITED STATES

CODE

Part III — Loss of Nationality

§ 1481. Loss of nationality by native-born or naturalized citizen ;
voluntary action ; burden of proof ; presumptions,

(a) From and after the effective date of this chapter a person who
is a national of the United States whether by birth or naturalization,
shall lose his nationality by —

(1) * * *•
*******

[(10) departing from or remaining outside of the jurisdiction of
the United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and service in the military, air, or naval
forces of the United States. For the purposes of this paragraph failure
to comply with any provision of any compulsory service laws of the
United States shall raise the presumption that the departure from or
absence from the United States was for the purpose of evading or
avoiding training and service in the military, air, or naval forces of
the United States.]

TITLE 10— ARMED FORCES, UNITED STATES CODE

Chapter 159— REAL PROPERTY; RELATED PERSONAL
PROPERTY; AND LEASE OF NON-EXCESS PROPERTY
*******
§2667. Leases: non-excess property.

(a) * * •.
*******

(b) A lease under subsection (a) —
(1) * * *.

302

[(4) must be revocable by the Secretary during a national emer-
gency declared by the President ; and]

*******

TITLE 12— BANKS AND BANKING, UNITED STATES

CODE

Chapter 3— FEDERAL RESERVE SYSTEM

DEFINITIONS, ORGANIZATION, AND GENERAL PROVISIONS AFFECTING

SYSTEM

[§249. Regulation of consumer credit.

TITLE 16— CONSERVATION, UNITED STATES CODE
*******

Chapter 12A— TENNESSEE VALLEY AUTHORITY
*******

§831d. Directors; maintenance and operation of plant for pro-
duction, sale, and distribution of fertilizer and power.

The board is authorized —
(a) * * *.
*******

[(m) No products of the Corporation except ferrophosphorus shall
be sold for use outside of the United States, its Territories and pos-
sessions, except to the United States Government for the use of its
Army and Navy, or to its allies in case of war or, until six months
after the termination of the national emergency proclaimed by the
President on December 16, 1950, or until such earlier date or dates as
the Congress by concurrent resolution or the President may provide
but in no event after April 1, 1953, to nations associated with the
United States in defense activities.]

303

TITLE 18— CRIMES AND CRIMINAL PROCEDURE,
UNITED STATES CODES

Chapter 67— MILITARY AND NAVY

[§1383. Restrictions in military areas and zones.

[Whoever, contrary to the restrictions applicable thereto, enters,
remains in, leaves, or commits any act in any military area or military
zone prescribed under the authority of an Executive order of the
President, by the Secretary of the Army, or by any military com-
mander designated by the Secretary of the Army, shall, if it appears
that he knew or should have known of the existence and extent of the
restrictions or order and that his act was in violation thereof, be fined
not more than $5,000 or imprisoned not more than one year, or both.J

TITLE 42— THE PUBLIC HEALTH AND WELFARE,
UNITED STATES CODE

§211a.

Chapter 6A— THE PUBLIC HEALTH SERVICE

SUBCHAPTER I ADMINISTRATION

* * *

[§211b. Promotion of commissioned officers,
[(a) Temporary promotions prior to July 1, 1948.

[Except as provided in the third and fourth paragraphs of this
section, no promotion shall be made under section 211 of this title,
prior to July 1, 1948. Until that date officers of the Regular Corps may
receive temporary promotions to higher grades with the pay and
allowances thereof pursuant to section 211(a)(1) of this title in
force prior to February 28, 1948, notwithstanding the termination,
prior to such date, of the war and of the national emergencies pro-
claimed by the President. Any officer holding, on June 30, 1948, an ap-
pointment pursuant to such section to a higher temporary grade shall
continue in such grade until such appointment is terminated, as the
President may direct.

[(b) Service credit.

304

[(c) Promotion based on years of service; effective date; exam-
ination; service credit.

[Officers of the Regular Corps who have, or who on or before July 1,
1948, will have, the years of service prescribed in paragraph (2) of
section 211(d) of this title, for promotion to the senior assistant, full,
or senior grade, shall be recommended to the President for such pro-
motion, to be effective as of July 1, 1948, whether or not vacancies
exist in such grade. Such promotions shall be made without examina-
tion, except that no promotions shall be made to the senior grade or
any grade immediately below a restricted grade until the officer is;
found qualified for promotion pursuant to subsection (c) of section 211
of this title. No promotion shall be made pursuant to this paragraph to
any grade in any professional category if such grade has been made
a restricted grade pursuant to subsection (b) of section 211 of this
title. For purposes of seniority an officer promoted under this para-
graph shall be credited with the years of service in the grade to which
promoted equal to the excess of his years of service on the date of
promotion over the years of service required for promotion to such
grade under paragraph (2) of section 211(d) of this title.

[Officers in the junior assistant grade in the Regular Corps who
have, or who on or before July 1, 1948, will have four or more years
of service in the junior assistant grade, shall be recommended to the
President for promotion to the assistant grade, to be effective as of
July 1, 1948, without examination and whether or not vacancies exist
in such grade. For purposes of promotion and seniority in grade, an
officer promoted under this paragraph shall be credited with the years
of service equal to the excess of his years of service on the date of pro-
motion over four years.

[(d) Service for purpose of seniority.

[(e) Term or tenure of office unaffected prior to July 1, 1948.

[Except as provided in the third and fourth paragraphs of this sec-
tion, the provisions of this section shall not, prior to July 1, 1948,
affect the term or tenure of office (including any office held under
temporary promotion) of anv commissioned officer of the Service in
office upon February 28, 1948. j

TITLE 50, APPENDIX—WAR AND NATIONAL DEFENSE,

U.S. CODE

305

SALE OF SURPLUS WAK-BUILT VESSELS

(Act Mar. 8, 1946, Ch. 82, Stat. 41)

[§ 1742. Price adjustment on prior sales to citizens,
[(a) Form, manner, and time of application.

[A citizen of the United States who on the date of the enactment of
this Act [March 8, 1946]—

[(1) owns a vessel which he purchased from the Commission
prior to such date, and which was delivered by its builder after
December 31, 1940 ; or

[(2) is party to a contract with the Commission to purchase
from the Commission a vessel, which has not yet been delivered
to him ; or

[(3) owns a vessel on account of which a construction-differen-
tial subsidy was paid, or agreed to be paid, by the Commission
under section 504 of the Merchant Marine Act, 1936, as amended
[section 1154 of Title 46], and which was delivered by its builder
after December 31, 1940 ; or

[(4) is party to a contract with a shipbuilder for the construc-
tion for him of a vessel, which has not yet been delivered to him,
and on account of which a construction-differential subsidy was
agreed, prior to such date, to be paid by the Commission under
section 504 of the Merchant Marine Act, 1936, as amended [sec-
tion 1154 of Title 46] ,
shall, except as hereinafter provided, be entitled to an adjustment in
the price of such vessel under this section if he makes application
therefor, in such form and manner as the Commission may prescribe,
within sixty days after the date of publication of the applicaable pre-
war domestic costs in the Federal Register under section 3(c) of this
Act [section 1736(c) of this Appendix]. No adjustment shall be made
under this section in respect of any vessel the contract for the con-
struction of which was made after September 2, 1945, under the provi-
sions of title V [subchapter V of chapter 27 of Title 46] (including
section 504 [section 1154 of Title 46] of title VII of the Merchant
Marine Act, 1936, as amended [subchapter VII of chapter 27 of
Title 46].

[(b) Determination of amount.

[(1) The Commission shall credit the applicant with the excess
of the cash payments made upon the original purchase price of the
vessel over 25 per centum of the statutory sales price of the vessel
as of such date of enactment [March 8, 1946]. If such pay-
ment was less than 25 per centum of the statutory sales price
of the vessel, the applicant shall pay the difference to the
Commission.

306

[(2) The applicant's indebtedness under any mortgage to the
United States with respect to the vessel shall be adjusted.

[ ( 3 ) The ad j usted mortgage indebtedness shall be in an amount
equal to the excess of the statutory sales price of the vessel as of
the date of the enactment of this Act [March 8, 1946] over the
sum of the cash payment retained by the United States under y
paragraph (1) plus the readjusted trade-in allowance (deter-
mined under paragraph (7) ) with respect to any vessel exchanged
by the applicant on the original purchase. The adjusted mortgage
indebtedness shall be payable in equal annual installments there-
after during the remaining life of such mortgage with interest on
the portion of the statutory sales price remaining unpaid at the
rate of 3!/2 per centum per annum,

[ (4) The Commission shall credit the applicant with the excess,
if any, of the sum of the cash payments made by the applicant
upon the original purchase price of the vessel plus the readjusted
trade-in allowance (determined under paragraph (7)) over the
statutory sales price of the vessel as of the date of the enactment
of this Act [March 8, 1946] to the extent not credited under
paragraph (1).

[(5) The Commission shall also credit the applicant with an
amount equal to interest at the rate of 3^ per centum per annum
(for the period beginning with the date of the original delivery
of the vessel to the applicant and ending with the date of the en-
actment of this Act [March 8, 1946] ) on the excess of the original
purchase price of the vessel over the amount of any allowance
allowed by the Commission on the exchange of any vessel on such
purchase; the amount of such credit first being reduced by any
interest on the original mortgage indebtedness accrued up to such
date of enactment and unpaid. Interest so accrued and unpaid
shall be canceled.

[(6) The applicant shall credit the Commission with all
amounts paid by the United States to him as charter hire for use
of the vessel (exclusive of service, any, required under the terms
of the charter) under any charter party made prior to the date of
the enactment of this Act [March 8, 1946], and any charter hire
for such use accrued up to such date of enactment and unpaid shall
be canceled; and the commission shall credit the applicant with
the amount that would have been paid by the United States to the
applicant as charter hire for bare-boat use of vessels exchanged
by the applicant on the original purchase (for the period begin-
ning with date on which the vessels so exchanged were delivered
to the Commission and ending with the date of the enactment of
this Act [March 8, 1946]).

307

credits in favor of the applicant under the foregoing provisions
of this subsection the amount of any deficiencies in Federal taxes
of the applicant, resulting from the application of subsection
(c) (1) of this section. If. after making such subtractions, the sum
of the credits in favor of the applicant exceeds the sum of the
credits in favor of the Commission, such excess shall be paid by
the Commission to the applicant. If, after making such subtrac-
tions, the sum of the credits in favor of the Commission exceeds
the sum of the credits in favor of the applicant, such excess shall
be paid by the applicant to the Commission. Upon such payment
by the Commission or the applicant, such overpayments shall be
treated as having been refunded and such deficiencies as having
been paid.
[For the purposes of this subsection, the purchase price of a vessel on
account of which a construction-differential subsidy was paid or
agreed to be paid under section 504 of the Merchant Marine Act, 1936,
as amended [section 1154 of Title 46], shall be the net cost of the
vessel to the owner.

[(c) Conditions binding on applicant.

[(1) depreciation and amortization allowed or allowable with
re.-pect to the vessel up to the date of the enactment of this Act
[March 8, 1946] for Federal tax purposes shall be treated as not
having been allowable; amounts credited to the Commission un-
der subsection (b)(6) of this section sha.ll be treated for Fed-
eral tax purposes as not having been received or accrued as
income; amounts credited to the applicant under subsection (b)
(5) and (6) of this section shall be treated for Federal tax pur-
poses as having been received and accrued as income in the taxable
year in which falls the date of the enactment of this Act [March 8,
1946] ;

[(2) the liability of the United States for use (exclusive of
service, if any. required under the terms of the charter) of the
vessel on or after the date of the enactment of this Act [March 8,
1946] under any charter party shall not exceed 15 per centum
per annum of the statutory sales price of the vessel as of such date
of enactment [March 8. 1946] and the liability of the United
States under any such charter party for loss of the vessel shall
be determined on the basis of the statutory sales price as of the
date of the enactment of this Act [March 8, 1946], depreciated
• to the date of loss at the rate of 5 per centum per annum : Provided.
That the provisions of this subsection (c) (2) [of this section]
shall not apply to any such charter party executed on or after the
date of enactment of this amendatory proviso [August 6, 1956] ;
and the Secretary of Commerce is directed to modify any ad-
justment agreement to the extent necessary to conform to the
provisions of this amendatory proviso; and

[(3) in the event the United States, prior to the termination
of the existing national emergency declared bv the President on

308

May 27, 1941, uses such vessel pursuant to a taking, or pursuant to
a bare-boat charter made, on or after the date of the enactment
of this Act [March 8, 1946] ; the compensation to be paid to the
purchaser, his receivers, trustees, shall in no event be greater than
15 per centum per annum of the statutory sales price as of such
date.

[(d) Applicability of other laws.

[Section 506 of the Merchant Marine Act, 1936, as amended [section
1156 of Title 46], shall not apply with respect to (1) any vessel which
is eligible for an adjustment under this section, or (2) any vessel de-
scribed in clause (1), (2), (3), or (4) of subsection (a) of this section,
the contract for the construction of which is made after September 2,
1945, and prior to the date of enactment of this Act [March 8, 1946].]

Rollcall Vote in Committee

In compliance with section 133 of the Legislative Reorganization
Act of 1946, as amended, the rollcall vote taken during committee con-
sideration of this legislation is as follows :

Yeas: (10) Nays: (0)

McClellan
Muskie
Chiles
Nunn
Glenn
Percy
Javits
Brock
Roth
Ribicoff

309

APPENDIX A

Central Intelligence Agency,

Washington, B.C.,
September 19, 1975.
Hon. Abraham Kibicoff,

Chairman, Committee on Government Operations, U.S. Senate,
Washington, D.C.
Dear Mr. Chairman: This is in response to your request for the
views and recommendations of this Agency on S. 977, the "National
Emergencies Act." The act would terminate those national emergencies
presently in effect, and establish procedures for the establishment, op-
eration, and termination of future declared national emergencies.

The Central Intelligence Agency derives its responsibilities and au-
tority from 50 U.S.C. 403, et seq. It would not be affected by the termi-
nation of existing states of national emergency. Therefore, I have no
comment on the bill, except for section 501.

Section 501 of the bill establishes accountability and reporting re-
quirements for the President and Federal agencies during a declared
state of war or national emergency. Subsections (a) and (b) require
Executive agencies to maintain a file and index of all rules and regu-
lations issued pursuant to declarations of war or national emergency.
These rules and regulations are to be transmitted to the Congress
promptly under means to assure confidentiality where appropriate. I
have no objection to this provision, with the understanding that
Agency activities conducted pursuant to 50 U.S.C. 403, although oc-
curring during a declared state of war or national emergency, are not
covered by section 501 of S. 977 but are reported to the Congress under
normal procedures.

The Office of Management and Budget has advised there is no ob-
jection to the submission of this report from the standpoint of the Ad-
ministration's program.
Sincerely,

W. E. Colby,

Director.

U.S. Senate,
Special Committee on National Emergencies

and Delegated Emergency Powers,

Washington, D.C, March 1, 1976.
Hon. Abraham Kibicoff,

Chairman, Committee on Governmental Operations, Dirksen Senate

Office Building, Washington, D.C.

Dear Senator Ribicoff: I understand that William Colby, while

Director of the CIA, wrote the Government Operations Committee of

the U.S. Senate to the effect that CIA activities conducted pursuant to

(20)

310

50 U.S.C. 403, although occurring during a state of war or national
emergency, would not be covered by the reporting requirement of the
National Emergencies Act but would be reported to the Congress
under other procedures which he did not detail.

Section 403 of title 50 of the United States Code, the basic charter of
the CIA, does not exempt the CIA from the reporting provisions of
the National Emergencies Act. The reporting exemptions which are
contained in that section were designed to prevent disclosure in an of-
ficial U.S. Government publication, of information which would re-
veal the size or personnel strength of the CIA. The National Emer-
gencies Act does not require the public reporting of such classified
information.

The agency is, however, properly concerned about disclosure of clas-
sified information. The National Emergencies Act specifically provides
that rules and regulations covered by the act "shall be transmitted to
the Congress promptly under means to assure confidentiality where
appropriate." The proper course is to stipulate that the CIA need only
report its rules and regulations to the appropriate oversight commit-
tee — in the case of the Senate, the oversight committee which the Gov-
ernment Operations Committee will shortly recommend be established
for the CIA.

I would also draw attention to the fact that the National Emer-
gencies Act requires that only regulations issued "pursuant to a na-
tional emergency" be reported, not that all such authorities be made
available. In the case of the Central Intelligence Agency, these new
rules and regulations are likely to be quite limited.
Sincerely,

Frank Church.

311

APPENDIX B

Executive Office of the President,
Office of Management and Budget,

Washington, D.C., September 15, 1975
Hon. Abraham Ribicof,

Chairman, Committee on Government Operations,
U.S. Senate, Washington, D.C.

Dear Mr. Chairman : This is in reply to your request of April 22,
1975, for the views of the Office of Management and Budget on S. 977,
a bill "To terminate certain authorities with respect to national emer-
gencies still in effect, and to provide for orderly implementation and
termination of future national emergencies."

S. 977 is substantially similar to H.R. 3884 which was passed in the
House on September 4, 1975, and referred to your committee on Sep-
tember 5, 1975. While the provisions of S. 977 are generally acceptable,
the House bill incorporates a number of amendments proposed by the
executive branch.

Both bills, however, contain one feature in common which the Ad-
ministration does not support. Section 202(a) (1) of each bill provides
that Congress can terminate future, Presidentially-declared national
emergencies by concurrent resolution. As you know, the executive
branch, on many previous occasions, has objected to the use of similar
concurrent resolution provisions in legislation on constitutional
grounds because such provisions circumvent the President's role in
the legislative process as provided in article I, section 7 of the
Constitution.

Finally, in addition to the emergency authorities in existing law
which would be excepted from termination under the provisions of
either S. 977 or H.R. 3884, several Departments, such as the Depart-
ment of Transportation, have proposed that certain other emergency
authorities should be similarly exempt.

Accordingly, except for the concurrent resolution provision dis-
cussed above, and subject to the Committee's consideration of the
additional authorities proposed for exclusion from a general termina-
tion of current emergency powers, the Office of Management and
Budget would have no objection to enactment of either S. 977 or
H.R. 3884.

Sincerely,

James M. Fret,
Assistant Director for Legislative Reference.
(22)

312

Comptroller General of the United States,

Washington, D.C., August 6, 1976.
B-178364.

Hon. Abraham Ribicoff,

Chairman, Committee on Government Operations,
U.S. Senate.

Dear Mr. Chairman : This is in response to your request of April
22, 1975, for our views on S. 977, 94th Congress, a bill to terminate
certain authorities with respect to national emergencies still in effect
and to provide for orderly implementation and termination of future
national emergencies.

Section 602(a) (4) provides that the provisions of the proposed bill
do not apply to the powers and authorities conferred by the Act of
June 30, 1949 (41 U.S.C. § 252). The authority conferred upon Execu-
tive agencies (except the Department of Defense, the Coast Guard
and the National Aeronautics and Space Administration) by 41
U.S.C. § 252(c) (1) is used to negotiate contracts without advertising
to assist labor surplus areas, to unilaterally set-aside contracts with
small business concerns and to further the U.S. Balance of Payments
Program. Similar authority is provided to the Departments of the
Army, the Navy and the Air Force, the Coast Guard and the National
Aeronautics and Space Administration by 10 U.S.C. § 2304(a)(1)
(1970). This exception to advertising requirements is used for labor
surplus set-aside programs, disaster area programs, small business
set-asides after unilateral determinations and Balance of Payments
Restricted Advertising. The authority of section 2304(a)(1) is not
excluded from the provisions of the bill, and if the bill is enacted,
legislation will be necessary for these agencies to continue the above-
mentioned programs where no other negotiating authority is avail-
able. The committee may wish to consider exempting the powers and
authorities of 10 U.S.C. § 2304 from the provisions of S. 977.

We note that, if enacted, the proposed bill will eliminate the power
of the President to authorize Government agencies that exercise func-
tions in connection with the national defense to enter into, amend, or
modify contracts without regard to other provisions of law, conferred
by Pub. L. No. 85-804 (Act of August 28, 1958, 72 Stat. 972, 50 U.S.C.
§§ 1431-35). The Commission on Government Procurement (with one
Commissioner dissenting) recommended that this authority be made
permanent and not be limited to periods of national emergency. See
Report of Commission on Government Procurement, Volume 4, pp.
51-60.

The objective of providing regular and consistent procedures by
which national emergency powers are called into force and terminated,
thereby according greater visibility and improving the exercise of
effective congressional oversight, is one which we favor.
Sincerely yours,

R. F. Keller,
Deputy Comptroller General of the United States.

313

General Counsel of the Department of Defense,

Washington, B.C., February 23, 1976.

Hon. Abraham A. Ribicoff,

Chairman, Committee on Government Operations,

U.S. Senate, Washington, D.C.

Dear Mr. Chairman : This is in reply to your request for an ex-
pression of the views of the Department of Defense on S. 977, 94th
Congress , an Act "To terminate certain authorities with respect to na-
tional emergencies still in effect, and to provide for orderly imple-
mentation and termination of future national emergencies."

S. 977 would terminate, one year after its enactment, any authority
conferred on an executive or other federal agency by law or executive
order as a result of the existence of a state of national emergency on
the date of enactment. The bill would authorize the President, upon
certain findings, to proclaim the existence of a future national emer-
gency but would require the proclamation to be transmitted to Con-
gress and published in the Federal Register. Such a future national
emergency would terminate upon a concurrent resolution by Con-
gress or by a proclamation of the President. Thus a future national
emergency could be terminated by either Congress or the President.

Enumeration of such powers and authorities would be required to
be transmitted to Congress and published in the Federal Register.
Further, the President would be required to maintain a file and index
of all significant presidential orders and proclamations and each
federal agency would be required to maintain a file or index of all
rules and regulations issued during future national emergencies.
Copies of all such presidential and federal agency issuances would be
required to be transmitted to Congress promptly.

World and national conditions have changed since President Tru-
man officially proclaimed the state of national emergency in 1950
incident to the commencement of hostilities in Korea. Many authorities
which were used then for the first time were regarded as extraor-
dinary. Since then, experience has demonstrated a need for these
authorities in the regular conduct of the day-to-day operations of the
Department of Defense. The desirability of terminating existing
states of emergency is recognized and no objection to their termina-
tion is entertained by the Department of Defense. However, there are
certain continuing needs, outlined below, which are accommodated by
the existing national emergency proclaimed by President Truman in
1950 but which are not specifically provided for in S. 977.

First, there are 863 members of the armed forces who are still un-
accounted for as a result of their participation in the recent hostilities
in Southeast Asia. Although the Department of Defense is making
every effort to resolve the uncertain status of these men, several fac-
tors have hampered this effort so that it is not possible to predict the
exact date by which their status will be finallv determined. One of
these factors is the decree of a federal court in a'case styled McDonald

314

v. McLucas which precludes the Secretaries of the military depart-
ments from changing the status of those now classified as missing in
action to killed in action until the primary next of kin are afforded an
opportunity to attend a hearing with counsel to present whatever evi-
dence they deem relevant and to examine service files. Only the emer-
gency authority of 10 U.S. Code 3313, 6386 (c) and 8313 authorizes the
suspension of mandatory separation and retirement requirements
which would otherwise be applicable to allow some of these members
to remain in the armed forces until they return or are accounted for.
Whether or not their situation is viewed as warranting continuation
of a national emergency, it would be inequitable to force their separa-
tion or retirement while they are still unaccounted for.

In the field of personnel administration, the emergency authority of
10 U.S.C. 3444 and 8444 has been used to grant relief, by way of tem-
porary appointment, to officers in the chaplain, judge advocate and
medical fields who, because of constructive service credit in their spe-
cialties, are considered for permanent promotion earlier than their
line officer counterparts and whose separation for failure of promotion
might become mandatory under conditions inconsistent with the needs
of the armed forces or fairness to the officers. Legislation which would,
among other things, provide a solution in permanent law for this
problem has been introduced in the Congress (H.R. 7486 and S. 2424,
Defense Officer Personnel Management Act, and H.R. 7769, Uni-
formed Services Retirement Modernization Act) and hearings have
begun on H.R. 7486. However, the legislative changes which these bills
would effect are so extensive that it would not be realistic to expect
early enactment.

In addition to these problems which would result from allowing the
emergency authority now provided by 10 U.S.C. 3444 and 8444 to
lapse, the President, as commander in chief of the armed forces, would
have no authority to grant temporary appointments to truly excep-
tional officers of the Army or Air Force. For example, the President
used this authority to extend a temporary appointment to the next
higher grade to the Air Force astronauts who successfully completed
suborbital or orbital flights. Continuation of this latitude is needed
so that exceptional individual contributions can still be recognized
through temporary appointments.

Termination of emergency authority under 10 U.S.C. 3444 and 8444
would also deny to the Army and Air Force the only authority avail-
able in some cases to appoint alien doctors as officers to meet increas-
ingly critical shortages of military medical personnel.

Termination of the 1950 national emergency would also terminate
entitlement to disability retirement or separation benefits under 10
U.S.C. 1201 and 1203 for members with less than 8 years of service
whose disability of 30 percent or more, although incurred in line of
duty while on active duty, was not the proximate result of the per-
formance of active duty. Imposition of this limitation — which would
affect only the junior officers and enlisted men — is particularly un-
timely when the armed forces are endeavoring to meet their manpower
needs through voluntary means. Continuation of the authority to re-
tire or separate military personnel with less than 8 years of service
who become unfit for further service by reason of a disability incurred
in line of duty, is needed as part of the military disability system.

315

Termination of the national emergency would also terminate the
authority of the Department of Defense (and certain other agencies)
under Public Law 85-804 (50 U.S.C. 1431-1435) to correct mistakes
in contracts, to formalize informal commitments, to indemnify con-
tractors against losses or claims resulting from unusually hazardous
risks to which they might be exposed during the performance of a
contract and for which insurance, even if available, would be pro-
hibitively expensive, and to grant other extraordinary contractual
relief. Loss of the indemnification authority, in particular, would have
an immediate adverse impact upon essential programs. During the
calendar year 1974 the military departments included indemnification
clauses under this authority in 128 contracts associated with nuclear-
powered vessels, nuclear-armed guided missiles, experimental work
with nuclear energy, handling of explosives and performance in haz-
ardous areas. The Commission on Government Procurement, estab-
lished by Public Law 91-129, has recommended that the authorizations
of P.L. 85-804 be made available generally rather than being depend-
ent upon the existence of a state of war or national emergency. But,
here also, enactment of the Commission's recommendation in the near
future does not appear likely.

S. 977 would adversely affect defense contracting in another way,
that is, in denying the emergency exception to the requirement for ad-
vertising procurements not otherwise authorized to be negotiated. Cf.
10 U.S.C. 2304(a) (1). This exception is now narrowly limited in its
application by the pertinent Armed Services Procurement Regula-
tion (32 CFR 3.201), but its application affects major social and eco-
nomic policies — the policies to favor labor surplus and disaster areas
and small business and to achieve a balance of payments favorable to
the United States.

Continuation of several emergency authorities governing personnel
administration in the naval service is also needed. These authorities
include 10 U.S.C. 5231(c), which suspends existing limitations on the
number of admirals and vice admirals of the Navy. If this authority
is not continued, the Navy would lose approximately one half of its
three- and four-star admirals. Similarly, 10 U.S.C. 5232(b) suspends
existing limitations on lieutenant generals of the Marine Corps. If this
authority is not continued, the Marine Corps would lose six of the cur-
rently authorized eight lieutenant generals. Section 5711(b) of title
10 authorizes the suspension of the statutory limit of 5% below-the-
zone selections specified in section 5707(c) . Continuation of the author-
ity provided in 10 U.S.C. 5785(b) is needed to suspend time-in-grade
Navy and Marine Corps requirements for promotion to all grades ex-
cept lieutenant and lieutenant commander. This statute is also the au-
thority for suspension of the mandatory line fraction for promotion of
staff corps officers to grades below rear admiral. Section 5787 of title
10 provides for temporary promotions in the Navy. Failure to retain
this authority would require approximately 650 limited duty officers
in the grade of lieutenant commander to revert to the grade of lieu-
tenant. Discontinuance of this authority would also require Senate con-
firmation of all Regular promotions to lieutenant (junior grade).

In view of the need for continuation of the authorities referred to
above, the Department of Defense recommends that any legislation
terminating emergency powers exempt the cited statutes from its effect

316

in order to preserve the substantive provisions which are now needed
but which would be lost by termination of the 1950 national emergency.

On September 4, 1975, the House of Representatives passed H.R.
3884, a bill that in its original form was virtually identical with S. 977.
In the course of hearings on H.R. 3884 before the House Judiciary
Committee's Subcommittee on Administrative Law and Governmental
Relations, the Deputy General Counsel made a statement which pre-
sented in detail the position of the Defense Department. For your con-
venience a copy of his statement is enclosed. The House of Representa-
tives adopted our recommendations with respect to needed exemptions
in contracting authority (cf . pp. 2-4 of the statement) , continuation of
the statutory emergency authority which suspends mandatory separa-
tion and retirement as applied to those members of the armed forces
who are still unaccounted for in Southeast Asia (cf. p. 7) ; deletion
of the reference to section 673 of title 10, United States Code, as inap-
propriate (cf. p. 8) ; and extension of the period for reporting to Con-
gress the quarterly expenditures incurred in future national emergen-
cies from thirty days after the end of each quarter to ninety days (cf.
pp. 8-9). In addition, at our informal suggestion that provision of
H.R. 3884 which would have terminated powers authorized by the ex-
isting national emergency one year from the date of enactment was
changed to provide for termination two years from the date of enact-
ment. This longer grace period is needed to accommodate the orderly
transition to normal procedures. It is strongly recommended that the
Senate also adopt these changes which were concurred in by the House
of Representatives.

There were several other exemptions from the reach of H.R. 3884
which were recommended by the Department of Defense but which
were not accepted by the House of Representatives. These items relate
to Defense organization (cf. pp. 4-7) and disability retirement or
separation benefits for military members with less than eight years of
service (cf. pp. 7-8). It is recommended that the Senate give favor-
able consideration to these items.

In general, the Department of Defense is in accord with the S. 977
goal of repealing obsolete or unnecessary emergency laws. Therefore,
subject to the foregoing reservations and recommendations, this De-
partment does not object to enactment of S. 977.

The Office of Management and Budget advises that, from the stand-
point of the Administration's program, there is no objection to the
submission of this report for the consideration of the Committee.
Sincerely,

Richard A. Wiley.

Enclosure.

Statement of Leonard Niederlehner, Deputy General Counsel,
Department of Defense on H.R. 3884

Mr. Chairman and Members of the Committee : I am very pleased
to have the opportunity to offer comments of the Department of De-
fense on H.R. 3884, "A Bill to terminate certain authorities with
respect to National Emergencies still in effect, and to provide for
orderly implementation and termination of future National
Emergencies."

317

The Department of Defense favors the goal of H.R. 3884 to termi-
nate obsolete or unnecessary authorities based upon states of emer-
gency. However, a relatively small number of the authorities currently
dependent upon a state of emergency affect contracting procedures,
personnel entitlements, and organizational structure of the Depart-
ment of Defense; and it is believed that the Congress will want to
enact permanent legislation to treat with these various subject matters.
Legislative proposals have been made to the Congress dealing with
most of these items and it is hoped that they will receive attention in
the near future. However, we recommend that they be exempted from
the broad sweep of the pending bill until such time as the Congress
has an opportunity to consider whether, and in what form, these
authorities should be enacted to permanent law.

World and national conditions have changed since President Tru-
man officially proclaimed the state of national emergency in 1950 in-
cident to the commencement of hostilities in Korea. Many authorities
which were used then for the first time were regarded as extraordinary.
Since then, experience has demonstrated a need for these authorities
in the regular conduct of the day-to-day operations of the Department
of Defense. The desirability oi terminating existing states of emer-
gency is recognized and no objection to their termination is en-
tertained by the Department of Defense. However, there are certain
continuing needs which are accommodated by the existing national
emergency proclaimed by President Truman in 1950 but which are not
specifically provided for in H.R. 3884. The bill should provide an ex-
ception for each of the items I shall now refer to until such time as
the Congress is able to consider permanent legislation to meet the par-
ticular need.

1. Contracting Authority

(a) Since 1941, there has been available to the Department of De-
fense authority to deal with unusual contract circumstances. Termina-
tion of the national emergency would terminate such authority of the
Department of Defense (and certain other agencies) under Public
Law 85-804 (50 U.S.C. 1431-1435), the current form of the 1941
statute. This statute provides authority to correct mistakes in con-
tracts, to formalize informal commitments, to indemnify contractors
against losses or claims resulting from unusually hazardous risks to
which they might be exposed during the performance of a contract
and for which insurance, even if available, would be prohibitively
expensive, and to grant other extraordinary contractual relief. The
Commission on Government Procurement, established by Public Law
91-129, recommended to the Congress in 1972 that the authorizations
of Public Law 85-804 be made available generally rather than being
dependent upon the existence of a state of war or national emergency.

(b) The procurement process wthin the Armed Services is utilized to
accomplish certain major social and economic policies by the place-
ment of contracts in labor surplus areas and in disaster areas, by letting
contracts to favor small business, and to achieve a balance payments
favorable to the United States. These collateral policies are achieved
through the emeregncy exception to the requirement for formal ad-

318

vertisement under the Armed Forces Procurement Act (10 U.S.C.
2304(a) (1) ). The use of this emergency exception is limited by regu-
lation (32 CFR 3-201) to the achievement of the enumerated policies.
In the light of the importance attached to these social and economic
purposes, Congress should have the opportunity to consider the estab-
lishment of appropriate contracting procedures on a permanent basis.

2. Personnel Administration

A number of personnel procedures which have become basic to the
current military structure are based upon a state of emergency. Major
legislative proposals which place many of these personnel procedures
on a permanent basis have been proposed but have not been enacted.
The latest and most comprehensive of these proposals, the Defense
Officer Personnel Management Act, was introduced in January, 1974,
but was not acted upon. It will be resubmitted to the new Congress in
1975 and, if passed by the Congress, will cure most of the problems I
shall now mention. These problems can be classified under two cate-
gories — those that deal with Defense organization and those that deal
with personnel entitlements.

a. Defense Organization

(1) Retention of the emergency authority of 10 U.S.C. 3444 and
8444 is required for the following purposes:

(a) To provide the authority to make temporary appointments
of officers in the Chaplain, Judge Advocate, and Medical fields,
who, because of constructive service credit in their specialities, are
considered for permanent promotion earlier than line officer coun-
terparts, and whose separation for failure of promotion might
become mandatory under conditions inconsistent with the needs
of the service.

(b) To provide the authority of the President as Commander in
Chief to grant temporary appointments to exceptional officers of
the Army or Air Force. (The promotion of the Air Force
astronauts.)

(c) To provide the authority to appoint alien doctors in the
Army and Air Force as officers to meet critical shortages of mili-
tary medical personnel.

(2) Over a period of years the personnel structure in the naval
service has developed around several emergency authorities which
now form the basis of officer management. These authorities include :

(a) 10 U.S.C. 5231(c), which suspends existing limitations on
the number of admirals and vice admirals of the Navy. If this
authority is not continued, the Navy would lose approximately
one-half of its three- and four-star admirals.

(b) 10 U.S.C. 5232(b) suspends existing limitations on lieuten-
ant generals of the Marine Corps. If this authority is not con-
tinued, the Marine Corps would lose five of the currently au-
thorized seven lieutenant generals.

(c) 10 U.S.C. 5711(b) authorizes the suspension of the statu-
tory limit of 5% for early promotion selections specified in section
5707(c).

319

(d) 10 U.S.C. 5785(b) is needed to suspend time-in-grade re-
quirements for promotion to all Navy and Marine Corps grades
except lieutenant and lieutenant commander. This statute is also
the authorit

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